NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JOSHUA JOEL JACOBSEN, Petitioner,

v.

THE HONORABLE JUSTIN BERESKY, Judge of the SUPERIOR COURT 

OF THE STATE OF ARIZONA, in and for the County of MARICOPA,

Respondent Judge,

STATE OF ARIZONA ex rel. KENT VOLKMER, Pinal County Attorney,

and KRISTIN K. MAYES, Arizona Attorney General, Real Parties in 

Interest.

No. 1 CA-SA 24-0066

Appeal from the Superior Court in Maricopa County

No. CR2006-156684-001

The Honorable Justin Beresky, Judge

JURISDICTION ACCEPTED AND RELIEF DENIED

Robert J. Campos & Associates, P.L.C., Phoenix

By Robert J. Campos

Counsel for Petitioner

Pinal County Attorney’s Office, Florence

By Lauren E. Deakin

Counsel for Real Parties in Interest State of Arizona

FILED 07-09-2024
2

Arizona Attorney General’s Office, Tucson

By Marjorie S. Becklund

Counsel for Real Parties in Interest MCAPD

Legal Services for Crime Victims in Arizona, Sun City

By Jamie Balson

Counsel for Real Parties in Interest K.K.

MEMORANDUM DECISION

Presiding Judge Anni Hill Foster delivered the decision of the Court, in 

which Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe 

joined.

F O S T E R, Judge:

¶1 Joshua Jacobsen filed a special action petitioning this Court to 

reverse the denial of his petition for disclosure of his probationary file and 

to enter an order requiring the disclosure of his complete probation file, 

absent any victim information. This Special Action asks this Court to 

address whether a probation officer’s notes in a probation file are subject to 

disclosure under Arizona Rule of the Supreme Court (“Rule”) 123. For the 

following reasons, this Court accepts jurisdiction but denies the relief 

sought.

FACTS AND PROCEDURAL HISTORY1

¶2 In 2007, Jacobsen pled guilty to one count of Sexual Abuse 

and one count of Luring a Minor for Sexual Exploitation. He was sentenced 

to six months in jail and lifetime probation on both offenses. In anticipation 

of filing a petition to terminate his probation, Jacobsen filed a motion for 

disclosure seeking his complete probation file. The court denied the request 

for disclosure, finding that the request was overbroad and unnecessary and 

Jacobsen needed to be more specific. The court granted leave to file a 

supplemental motion to itemize the items needed, considering the 

confidentiality concerns raised by the State and the ability to get 

information without going through Adult Probation Department (“APD”).

1 Because a responsive pleading was not filed, the facts are taken solely from 

the Petition. 
JACOBSEN v. HON BERESKY/STATE

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3

Jacobsen requested his entire file, again, but specified 19 items he wanted 

in the file.

¶3 Jacobsen retained Dr. Naegele and Beth Hoel for the purpose 

of evaluating his file for early termination of probation. Naegele and Hoel

both wrote letters detailing the reasons the entire file was essential for a 

complete and accurate evaluation. The State objected, arguing Jacobsen 

could obtain his own medical records but offered in the alternative to

provide limited disclosure if the court granted the motion. The State also 

argued any “[c]ase notes and log entries are the work product of the 

probation officer and are confidential pursuant to Rule 123. [And b]ecause

there is no pending petition . . ., those documents should remain 

confidential.” The court denied the motion again stating it lacked specificity 

as to the records requested and, that the “briefing appears to argue 

essentially an unfettered right at any time for the probation department to 

provide whatever documents Mr. Jacobsen desires, even when no litigation 

is active. That is not the role of ADP.”

¶4 In 2024, Jacobsen filed a motion to terminate lifetime 

probation with leave to supplement his petition once he received his

probation file. He also filed a renewed motion for disclosure. The court 

ordered APD to file a memorandum to the court “detailing [Jacobsen’s]

progress on probation, areas of compliance and non-compliance as well as 

the probation department’s position on early termination.” A probation 

officer filed a memorandum listing every alleged infraction, probation 

violation, non-compliance, or inaction allegedly committed by Jacobsen 

throughout his entire seventeen years while on probation. The 

memorandum recommended he “complete a final MSI-II Assessment” and 

“[p]ending the results of the MSI-II, he may be a candidate for early 

termination.”

¶5 Jacobsen filed a motion to compel disclosure and requested 

leave to file his reply to the State’s opposition for early termination once his 

probation file was disclosed. The court denied Jacobsen’s motion for 

disclosure stating it historically denied the Defendant’s requests for his 

entire probation file and will continue to deny discovery requests for the 

entire file, which spans almost two decades, as overly broad. This special 

action followed, and this Court has jurisdiction under Ariz. Const. art. 6, 

§ 9, A.R.S. § 12-120.21(A)(4), and the Arizona Rules of Procedure for Special 

Actions.
JACOBSEN v. HON BERESKY/STATE

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DISCUSSION

¶6 Jacobsen’s challenge to the court’s order argues three points: 

(1) Rule 123 was conceived as a mechanism for making court records 

available to the public and does not apply to him because he is not a public 

user; (2) pursuant to Rule 15.1(g), Arizona Rules of Criminal Procedure, 

Jacobsen is entitled to disclosure of his probation file because he has a 

substantial need for the file and cannot obtain the equivalent by any other 

means; and (3) pursuant to Arizona Rules of Evidence 702 through 705, 

Jacobsen is entitled to disclosure of his probation file. 

I. Rule 123 prevents disclosure of a probation file unless ordered 

by a court. 

¶7 This case presents a question of statutory interpretation, 

which this Court reviews de novo. State ex rel. DES v. Pandola, 243 Ariz. 418, 

419, ¶ 6 (2018). This Court’s “task in statutory construction is to effectuate 

the text if it is clear and unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of 

Transp., 244 Ariz. 17, 19, ¶ 9 (2018). “Words in statutes should be read in 

context in determining their meaning.” Stambaugh v. Killian, 242 Ariz. 508, 

509, ¶ 7 (2017).

¶8 The policy outlined in Rule 123 is that records should be open 

to members of the public but that “countervailing interests of 

confidentiality, privacy or the best interests of the state public access . . . 

may be restricted or expanded in accordance with the provision of this rule, 

or other provisions of law.” Ariz. R. Sup. Ct. 123(c)(1). In this vein, though 

court records generally are open to the public, subsection (d) of the Rule

restricts public access to specific categories of records including, 

“diagnostic evaluations, psychiatric and psychological reports, . . . social 

studies, probation supervision histories and any other records maintained 

as the work product of . . . probation officers.” Ariz. R. Sup. Ct. 123(d)(2)(A).

Such records are required to be separated and marked confidential from 

any other nonconfidential case records and only disclosed pursuant to 

“ARS § 41-1750 et seq. or by court order.” Ariz. R. Sup. Ct. 123(d)(2)(B).

Because the records Jacobsen seeks are confidential under Rule 123, the 

Rule does not provide a legal basis for disclosure of the probation file, and 

the court did not abuse its discretion in denying Jacobsen’s request. 

II. The court did not abuse its discretion under Rule 15.1 by 

denying Jacobsen’s motion to compel.

¶9 Jacobsen next argues that he is entitled to disclosure of his 

entire probation file because he has a substantial need for the file and cannot 
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5

obtain the equivalent by any other means. This Court “review[s] the 

superior court’s ruling for abuse of discretion.” State v. Mandell in & for Cnty. 

of Maricopa, 253 Ariz. 97, 100, ¶ 9 (App. 2022).

¶10 This Court has held that the disclosure rules apply to

probation revocation proceedings because defendants in such proceedings 

are “entitled to the minimum requirements of due process.” Kanuck v. 

Meehan, 165 Ariz. 282, 284–285 (App. 1990). But that entitlement is not 

without its limits. The APD and its files are not included in the required 

disclosures under Rule 15.1. Thus Rule 15.1(g) governs a finding of 

substantial need for the material and that the material cannot be obtained 

through other means. Ariz. R. Crim. P. 15.1(g). Jacobsen has failed to show 

why the court is required to disclose the entire file, nor has he shown why 

he needs the entire file. Jacobsen merely argues that the expert, Beth Hoel, 

whom Jacobsen retained to testify, explained why the probationer needs his 

complete file, without citing to any case law. Without anything more, he 

has failed to show how the court abused its discretion denying the entire 

file.

¶11 Jacobsen argues that under Arizona Rule of Criminal 

Procedure 26.6(a), he has the right to review all presentence, diagnostic, and 

mental health reports in his file. But State ex rel. Corbin v. Superior Court In 

& For Maricopa County (1968), provides “[t]he trial judge in his sound 

discretion must determine the reasonableness of a request for the exercise 

of his inherent power to grant discovery which request might merely be a 

disguised attempt at a ‘fishing expedition’ by the defense.” 103 Ariz. 465, 

468. Corbin also expressly limits examination of law enforcement work 

product absent a showing that discovery has been subverted or 

circumstances where the defendant could not otherwise obtain the 

information. Id. at 468–69.

¶12 Here, Jacobsen has not shown that the court abused its 

discretion in denying the motion to compel. Jacobsen has not demonstrated

a substantial need nor that he is unable to obtain the requested records 

elsewhere. The court has provided an opportunity for Jacobsen to request 

specific documents, or categories of documents, which Jacobsen has not 

done. Though the record provided demonstrates that specific documents 

were requested, the request was still for the entire file, and the court did not 

abuse its discretion in denying the request. See United States v. Derewal, 66 

F.3d 52, 55 (3d Cir. 1995) (holding “that the district court did not err in 

refusing to order the production of the probation officer’s entire file”).
JACOBSEN v. HON BERESKY/STATE

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III. The Rules of Evidence do not require disclosure of the entire 

probation file. 

¶13 Jacobsen argues that absent the court granting his request for 

his entire file, both his experts will face challenges from the State similar to 

Alma S. v. Dep’t of Child Safety (App. 2017) because the experts’ testimony 

will lack foundation due to not having independent records to review and 

insufficient knowledge of the facts to support their testimony. See 244 Ariz. 

152, 158–62, ¶¶ 18–33. But Alma is not good law. See Alma S. v. Dep’t of Child 

Safety, 245 Ariz. 146, 152, ¶¶ 21, 23 (2018) (holding that the deferential 

standard of review supported the sufficiency of the evidence finding and 

vacating this Court’s opinion).

¶14 Jacobsen also cites Arizona Rules of Evidence 702 through 705

in an attempt to bolster his argument that without such information, the 

experts will be objected to. Rule 702 discusses who a qualified expert is and 

the ways the expert may testify. See Ariz. R. Evid. 702. Rule 703 discusses 

what facts the expert may base her opinion on. See Ariz. R. Evid. 703. Rule 

704 discusses that an expert opinion is “not [automatically] objectionable 

just because it embraces an ultimate issue.” See Ariz. R. Evid. 704. Lastly, 

Rule 705 discusses that “an expert may state an opinion . . . without first 

testifying to the underlying facts or data” but “may be required to disclose 

those facts or data on cross-examination.” See Ariz. R. Evid. 705. None of 

these rules require disclosure. Instead, they all speak to the admissibility of 

evidence and testimony. The Rules of Evidence do not circumvent the 

requirement of Rule 15.1(g) that the court find substantial need and that the 

information cannot be otherwise obtained. Jacobsen’s citation to the rules 

of evidence do not support his position.

¶15 While Jacobsen is entitled to due process in his probation, a 

blanket request for his entire probation file is burdensome and does not 

require full disclosure. See Corbin, 103 Ariz. at 468 (holding that while 

fundamental fairness requires the disclosure of necessary items for a 

defendant’s case, this does not equate to full disclosure and a court has 

discretion to place limits on what must be disclosed, balancing against other 

interests such as the prosecution’s work product).
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CONCLUSION

¶16 Jacobsen has not demonstrated that he is entitled to the 

records he seeks under Rule 123 or that the court abused its discretion in 

denying his motion to compel. This Court grants jurisdiction but denies 

relief.