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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

J.D. BALL, Plaintiff/Appellant,

v.

ARIZONA DEPARTMENT OF HEALTH SERVICES, et al., 

Defendants/Appellees.

No. 1 CA-CV 21-0134 

Appeal from the Superior Court in Maricopa County

No. CV2020-012030

The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

J.D. Ball, Scottsdale

Plaintiff/Appellant

Sherman & Howard LLC, Phoenix

By Gregory W. Falls, Craig A. Morgan

Counsel for Defendants/Appellees

FILED 12-28-2021
BALL v. ADHS, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 J.D. Ball appeals the superior court’s order denying his special 

action complaint filed under Arizona’s public records statute, A.R.S. § 39-

121. Ball challenges several of the court’s scheduling, discovery, and 

evidentiary rulings, as well as the court’s decision denying him access to 

COVID-19 records in the custody of the Arizona Department of Health 

Services (“ADHS”). Because the court acted within its discretion in 

deciding issues unrelated to the merits, and reasonable evidence supports 

the court’s ruling that the records Ball sought are not subject to disclosure, 

we affirm. 

BACKGROUND

¶2 Ball is writing a book about COVID-19. In June 2020, he sent 

ADHS a public records request seeking access to the records ADHS relied 

on when preparing its COVID-19 publications, including its COVID-19 

dashboard. ADHS denied the request, explaining it could not divulge 

private medical information, communicable disease information, or death 

certificates. Ball then sent ADHS an addendum, stating in part he was not 

seeking any personal health-related data, but only public records proving 

that COVID-19 “exists as a pandemic virus” and is a communicable disease

in Arizona. ADHS, through legal counsel, again denied the request. 

¶3 In response, Ball sent ADHS a letter demanding it “[c]ease

and desist the illegal activity of publishing false information,” and alleged 

ADHS was committing treason by selectively reporting on COVID-19 to 

“influence a COVID-19 pandemic catastrophe.” When ADHS did not 

respond, Ball sought special action relief in the superior court. Ball asked

the court to compel ADHS to disclose “the source of the data used to create 

the COVID-19 dashboard” so he could “confirm the accuracy of the 

information released to the public.” Specifically, he requested records 

relating to confirmed cases, testing, death certificates, hospitalization and 

ventilator use. Ball also demanded answers to a number of administrative, 

political, and scientific questions. For example, in his complaint Ball 
BALL v. ADHS, et al.

Decision of the Court

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demanded ADHS explain why it uses some kinds of COVID-19 tests over 

others, why Arizona’s infection rates were above the national average, what 

type of oversight ADHS has implemented, and why the media is allowed 

to publish false information. 

¶4 The court ordered ADHS to show cause for denying the 

request, and a hearing was scheduled for November 17, 2020. The court 

then granted ADHS a continuance because of a scheduling conflict, 

delaying the matter until November 20. At the hearing, the parties seemed 

to agree that direct examination would be submitted through witness 

declarations instead of live testimony. The parties expressly agreed to 

submit all exhibits to the court by November 25. The court then scheduled 

an evidentiary hearing for December 4.

¶5 On November 25, Ball filed an emergency motion to extend 

the deadline for filing exhibits, claiming his computer crashed when he 

attempted to upload his exhibits, and thus some of them would need to be 

filed with the court after 5:00 p.m. Additionally, Ball never disclosed or 

submitted witness declarations; instead, he submitted a list of witnesses he 

wished to call at the hearing. Ball then sought another extension, asking 

the court to accept additional exhibits submitted after November 25 because

he had to be taken to the hospital by ambulance on November 27 for 

treatment of an injury to his hand. 

¶6 The court issued an order taking under advisement all 

exhibits delivered to the court by November 25, regardless of when they 

were submitted. The court rejected exhibits delivered after that date and 

excluded Ball’s witnesses because he did not follow the stipulation to 

submit declarations. The court also converted the December evidentiary 

hearing to an oral argument. 

¶7 During oral argument, Ball noted he was on medication due 

to his injury, but he did not ask for a continuance or suggest he was unable 

to participate in the proceedings. Nor did he object to the court’s order 

changing the evidentiary hearing to an oral argument or ask the court to 

schedule another evidentiary hearing. At the conclusion of oral argument, 

Ball indicated that he had no additional issues to discuss, and the court took 

the matter under advisement. Ball did not raise any issues pertaining to the 

oral argument in any subsequent filings. 

¶8 After additional pleadings were filed, the court accepted 

special action jurisdiction and issued its ruling. First, the court admitted 

into evidence and presumably considered the 90 exhibits Ball delivered to 
BALL v. ADHS, et al.

Decision of the Court

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the court by the deadline date. Second, the court noted that much of what 

Ball requested were answers to investigative and philosophical questions, 

and therefore fell outside the realm of a public records request. Third, to 

the extent Ball’s complaint included legitimate requests for public records 

from ADHS, the court declined to order disclosure and dismissed the 

lawsuit with prejudice. After Ball unsuccessfully moved for 

reconsideration, he timely appealed. We have jurisdiction pursuant A.R.S. 

§ 12-120.21(A)(1).

DISCUSSION

¶9 As an initial matter, ADHS asserts that Ball’s opening brief 

does not comply with the requirements of ARCAP 13(a), and requests that 

we sanction him by dismissing the appeal. See ARCAP 25; Adams v. Valley 

Nat. Bank of Ariz., 139 Ariz. 340, 342 (App. 1984). Although the opening 

brief is deficient in many ways, we decline to dismiss the appeal. Instead, 

we address the merits to the extent Ball identifies arguable issues. See id. 

A. Scheduling and Evidentiary Challenges 

¶10 Ball challenges several of the superior court’s scheduling, 

discovery, and evidentiary rulings. We review scheduling orders and the 

denial of a continuance for an abuse of discretion. See In re MH 2007-001264, 

218 Ariz. 538, 539, ¶ 5 (App. 2008); Reid v. Reid, 222 Ariz. 204, 206, ¶ 8 (App. 

2009). Additionally, we “will affirm a trial court’s admission or exclusion 

of evidence absent a clear abuse of discretion or legal error and resulting 

prejudice.” Belliard v. Becker, 216 Ariz. 356, 358, ¶ 13 (App. 2007).

¶11 Ball argues the court abused its discretion in setting the initial

disclosure deadline, asserting “the court clearly favored [ADHS] and 

placed Plaintiff on an impossible timeline.” He explains that the deadline 

was unworkable because it overlapped with Thanksgiving and only gave

him three business days to prepare his exhibits. For the same reasons, Ball 

argues the court erred (1) by not extending the exhibit disclosure deadline 

to the December date listed in his second motion to extend, and (2) in 

excluding his exhibits filed after November 25. 

¶12 The superior court has broad discretion in ruling on discovery 

and disclosure deadlines, and has authority to impose penalties for failing 

to comply. See Ariz. R. Civ. P. 16(h)(1)(A), (j); Ariz. R. Civ. P. 37(b)(2)(A)(ii), 

(c)(1), and (c)(4); Granger v. Wisner, 134 Ariz. 377, 381 (1982). Here, the court 

gave Ball the option of setting the deadline for November 30, but he stated 

that November 25 would be fine. Parties are generally bound by their own 

stipulations unless relieved by the court. Harsh Bldg. Co. v. Bialac, 22 
BALL v. ADHS, et al.

Decision of the Court

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Ariz.App. 591, 593 (1975). On these facts, we cannot say the court abused 

its discretion in either setting this deadline or refusing to extend it, 

especially considering both parties had the same amount of time and 

agreed to this timeframe. 

¶13 Ball next argues that an extension to file his exhibits was 

warranted because of his crashed computer and hand injury. However, the 

court granted his initial motion to extend due to the computer crash, taking 

under advisement all exhibits submitted on November 25 and eventually 

admitting 90 of them. Moreover, Ball’s injury occurred on November 27, 

after the deadline already lapsed, so it had no bearing on his ability to 

comply with the court’s order. No abuse of discretion occurred. 

¶14 Ball suggests the court abused its discretion by converting the 

December evidentiary hearing to an oral argument, by not continuing the 

oral argument due to his injury, and by not allowing him to call witnesses. 

He contends the court denied him due process by not allowing him more 

time to submit exhibits and prepare for oral argument, especially 

considering his injury and the fact that the court granted ADHS a 

continuance on an earlier hearing. But Ball did not raise these issues in the 

superior court, and never asked that court to postpone the December oral 

argument or schedule an evidentiary hearing. See Englert v. Carondelet 

Health Network, 199 Ariz. 21, 26, ¶ 13 (App. 2000) (stating that we generally 

do not consider issues raised for the first time on appeal). On appeal, Ball 

does not cite authority to develop his due process claim, nor does he 

support it with argument other than vague assertions that “[d]ue process 

requires all parties are treated fairly.” Thus, Ball has waived these 

arguments. See MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011)

(holding that a party waives issues he or she fails to develop or support in 

the opening brief). 

B. Substantive Issues

¶15 “Public records and other matters in the custody of any officer 

shall be open to inspection by any person at all times during office hours.” 

A.R.S. § 39-121. “Any person may request to examine or be furnished 

copies, printouts or photographs of any public record during regular office 

hours or may request that the custodian mail a copy of any public record 

not otherwise available on the public body’s website to the requesting 

person.” A.R.S. § 39-121.01(D)(1). Public records are broadly defined, and 

a strong presumption exists in favor of disclosure. Griffis v. Pinal Cnty., 215 

Ariz. 1, 3, ¶ 8 (2007). However, the public’s right to access public records is 

not absolute. Carlson v. Pima Cnty., 141 Ariz. 487, 490 (1984). Our legislature 
BALL v. ADHS, et al.

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has adopted a number of statutory exceptions to public records disclosure, 

id., including those we discuss below. We review de novo the denial of a 

public records request, but otherwise review the court’s order for an abuse 

of discretion. W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Office, 216 Ariz. 

225, 227, ¶ 7 (App. 2007).

¶16 The court found that the records were either confidential 

medical information or death certificates, and therefore shielded from Ball’s 

public records request. Ball argues this was error, asserting he was not 

requesting medical information and that death certificates are already 

publicly available.

1. Medical Information/Records

¶17 ADHS did not specifically take the position that medical 

information was categorically protected. Rather, ADHS asserted only that 

some of the records contained medical information obtained by an

enhanced surveillance advisory, and therefore those specific records were 

protected under A.R.S. § 36-784. That said, we agree with the superior 

court, and Ball does not argue otherwise, that medical information is

categorically protected from public disclosure, unless an exception applies. 

As mandated by the legislature, “[u]nless otherwise provided by law, all 

medical records and payment records, and the information contained in 

medical records and payment records, are privileged and confidential.” 

A.R.S. § 12-2292(A). Because medical records have been deemed 

confidential by statute, they are not available for public inspection. See 

Schoeneweis v. Hamner, 223 Ariz. 169, 173, ¶ 14 (App. 2009). Medical records 

include what the superior court referred to as “medical information,” as

medical records are statutorily defined as “all communications related to a 

patient’s physical or mental health or condition that are recorded in any 

form or medium and that are maintained for purposes of patient diagnosis 

or treatment, including medical records that are prepared by a health care 

provider or by other providers.” A.R.S. § 12-2291(6). And although the 

court did not draw the connection between medical information and the 

medical records statute, we will affirm the court’s ruling if it is correct for 

any reason. State v. Carlson, 237 Ariz. 381, 387, ¶ 7 (2015).

¶18 Ball contends he did not seek confidential medical 

information or records. Besides death certificate data, Ball specifically 

requested data concerning confirmed cases, hospitalizations, laboratory 

testing, hospital bed usage and availability, ventilator usage and 
BALL v. ADHS, et al.

Decision of the Court

7

availability, and “COVID-19 specific metrics.”1 Logically, these broad

categories include medical information that falls under the definition of 

medical records. Ball points to no other kinds of source data that would fit 

into his requested categories of documents. In his reply brief, Ball asserts 

that any identifiable information, such as names or social security numbers,

could be redacted. However, confidentiality protection is not limited to the 

patient’s identity. See § 12-2292(A). And even if signifiers were redacted, a 

danger remains that patient identity could be inferred. On this record, the 

court did not err in finding Ball sought confidential medical records 

protected from disclosure. 

2. Communicable Disease Information 

¶19 ADHS also asserted the records are protected from disclosure 

because they contain communicable disease information. Under A.R.S. 

§ 36-664(A), “[a] person who obtains communicable disease related 

information . . . shall not disclose or be compelled to disclose that 

information except as authorized by state or federal law,” unless certain 

enumerated exceptions apply. The court did not explicitly hold that the 

records Ball requested were confidential communicable disease records 

under § 36-664, holding only that Ball waived any argument that the 

confidentiality exceptions applied. Again, we will affirm if the ruling is 

correct for any reason. Carlson, 237 Ariz. at 387, ¶ 7.

¶20 Ball argues that “[t]o be protected under ARS [§] 36-664([A])

ADHS has to prove the existence of a pandemic. [It] can’t hide behind a 

pandemic law to avoid proving there is a pandemic with number[s] that are 

mathematically impossible.” Ball further contends that ADHS must prove 

COVID-19 “is more infection than other annual flu season, its highly 

contagious and deadly.” But Ball misinterprets the statute. Section 36-

664(A) contains no requirement that the State prove a pandemic exists, or 

that the condition is more prevalent than any other virus; the only 

requirement is that the records concern a communicable disease. No one

disputes that COVID-19 is a communicable disease, as Ball concedes in his 

motion for reconsideration. Presumably, the types of source data Ball 

requested would include communicable disease information as defined by 

statute, and Ball does not identify any source data that would not include 

this information. Thus, in addition to being protected as medical records, 

1 This term’s meaning is not obvious, and Ball offers no clear 

explanation. 
BALL v. ADHS, et al.

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the requested records are also protected under § 36-664(A) because they 

concern communicable disease information. 

¶21 Ball next asserts the court “erred by ruling on false evidence 

contradicting the pleading and the evidence . . . used for the ruling.” Ball 

appears to take issue with the court’s holding that he waived any 

exceptions to the communicable disease provision. He argues he never 

denied a communicable disease exists, but instead was seeking whatever 

proof ADHS had regarding their claims that COVID-19 exists, is a 

communicable disease, and a pandemic. Regardless, Ball provided no 

argument, either in the superior court or on appeal, that any of the 

exceptions applied to his request, so we affirm the court’s finding of waiver. 

Waiver aside, our review of the statute and the record does not reveal any 

exceptions that could possibly apply. See § 36-664(A)(1)–(19).

3. Death Certificates 

¶22 Ball also argues the court erred in finding he was not entitled 

to death certificate information. He contends that death certificates are 

already in the public domain and that he was merely requesting ADHS to 

organize the certificates “by the cause of death being COVID-19.” 

Regardless of whether death certificates are available from public sources, 

the issue here is whether Arizona law permits ADHS to disclose them. 

Arizona law plainly states that the state registrar is prohibited from (1) 

allowing “the inspection of a vital record or evidentiary document 

supporting the vital record,” (2) disclosing “information contained in a vital 

record,” or (3) transcribing or issuing “a copy of all or part of a vital record.” 

A.R.S. § 36-342(B).2 And although our vital statistics law makes exceptions 

for certain people, see A.R.S. § 36-324(A), journalists do not fall under those 

categories. See Ariz. Admin. Code § R9-19-314(B); see also Schoeneweis, 223 

Ariz. at 175, ¶ 20 (holding that § 36-324 exempts death certificates from the 

public records law). We affirm the court’s decision denying access to death 

certificates. 

2 “The director of the department is the state registrar of vital records,” 

A.R.S. § 36-302(A), and “’[d]epartment’ means the department of health 

services,” A.R.S. § 36-101(2). 
BALL v. ADHS, et al.

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CONCLUSION

¶23 For the foregoing reasons, we affirm the superior court’s 

order dismissing Ball’s amended complaint. ADHS requests attorneys’ fees 

as a sanction under ARCAP 25. In our discretion, we deny the request.