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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHNSON UTILITIES L.L.C., Plaintiff/Appellant, 

v.

TOWN OF QUEEN CREEK, Defendant/Appellee. 

__________________________________________________________ 

ARIZONA CORPORATION COMMISSION, Intervenor/Appellee.

No. 1 CA-CV 18-0201 

Appeal from the Superior Court in Maricopa County

No. CV 2018-005640 

The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Fredenberg Beams, Phoenix

By Daniel E. Fredenberg, Christian C. M. Beams

Counsel for Plaintiff/Appellant

Dickinson Wright PLLC, Phoenix

By Scott A. Holcomb, David J. Ouimette, Holly M. Zoe

Counsel for Defendant/Appellee 

Arizona Corporation Commission, Phoenix

By Andy M. Kvesic, Maureen A. Scott

Counsel for Intervenor/Appellee 

FILED 2-26-2019
JOHNSON v. QUEEN CREEK/ACC

Decision of the Court

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Ballard Spahr LLP, Phoenix

By David J. Bodney, Chase A. Bales

Counsel for Amicus Curiae Phoenix Newspapers Inc., KPNX-TV Channel 12, 

Scripps Media, Inc. and Meredith Corporation

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in 

which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.

P E R K I N S, Judge:

¶1 A utility company brought this action seeking declaratory 

relief that a nondisclosure agreement it entered into with a town prevented 

the town from producing certain documents for a public records request. 

We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We conduct our review based on the record made in the trial 

court, considering only the evidence presented to the trial court. See Vig v. 

Nix Project II P’ship, 221 Ariz. 393, 396, ¶ 10 (App. 2009). 

¶3 In September 2017, the Town of Queen Creek (“Town”) began 

talks with Johnson Utilities, LLC (“Johnson”) for the purpose of entering

into a “transaction of mutual interest.” Toward this end, Johnson and the 

Town agreed to a Mutual Nondisclosure Agreement (“Agreement”) that 

allowed the parties to exchange documents, and also defined several classes 

of documents as “Confidential Information.” 

¶4 Johnson delivered some documents to the Town via a File 

Transfer Protocol (“FTP”) server. In December 2017, the Town decided to 

stop pursuing the transaction and canceled future meetings. The parties 

apparently then stopped communicating on this matter for several months. 

¶5 On March 16, 2018, Commissioner Andy Tobin of the Arizona 

Corporation Commission (“Commission”) sent a letter to the Town 

requesting any communications between the Town and Johnson. The Town 

treated this letter as a public records request, see Arizona Revised Statutes 

(“A.R.S.”) Title 39, and, pursuant to the Agreement, alerted Johnson of its 

intention to disclose documents to the Commission. Johnson responded 
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that it believed some of the documents were protected from disclosure 

under the Agreement and demanded that the Town delete the information 

from the FTP server. 

¶6 On April 6, 2018, Johnson filed the instant suit after the Town 

refused to delete the disputed documents. Johnson also requested a 

temporary restraining order (“TRO”) against the Town to prevent it from 

disclosing any documents to the Commission until resolution of the suit. 

The trial court enjoined the Town from disclosing any documents until a

scheduled hearing for a TRO. The Commission made an appearance in the 

case before the hearing. 

¶7 On April 12, 2018, the parties and trial court agreed to 

consolidate the TRO hearing with the merits of the case. The court did not 

take testimony but received exhibits and considered the arguments of 

counsel. The trial court then issued an order in which it held that the 

disputed documents were public records and that it did not have the 

authority to direct the Town to withhold the disputed documents. The trial

court also issued a limited TRO against disclosure of the documents to 

allow Johnson time to appeal. Johnson filed the instant appeal and we 

stayed the expiration of the TRO pending its resolution. 

DISCUSSION

¶8 “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. Our courts employ a two-step process to determine whether 

a government agency must disclose a disputed document. Griffis v. Pinal 

Cty., 215 Ariz. 1, 5, ¶¶ 12–13 (2007). When the party opposing disclosure 

raises a “substantial question” about a document’s status, the court must 

first determine that the document is a public record and thus subject to the 

public records statute. Id. at ¶¶ 13, 15. If so, “the public records law creates 

a strong presumption in favor of disclosure.” Id. at ¶ 12. The party opposing 

disclosure may overcome this presumption with a showing that the 

“countervailing interests of confidentiality, privacy or the best interests of 

the state” override the disclosure policy. Carlson v. Pima Cty., 141 Ariz. 487, 

491 (1984); Salt River Pima-Maricopa Indian Cmty. v. Rogers, 168 Ariz. 531, 

537–38 (1991). Each step presents an issue of law that we review de novo. 

Lunney v. State, 244 Ariz. 170, 174, ¶ 6 (App. 2017). 

¶9 As to the first step, the “party claiming that the disputed 

documents are not public records bears the burden of establishing its 

claim.” Griffis, 215 Ariz. at 6, ¶ 16. Public records are those that are 
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“reasonably necessary or appropriate to maintain an accurate knowledge 

of [an officer’s or public body’s] official activities” and any activities 

“supported by monies from this state or any political subdivision of this 

state.” A.R.S. § 39-121.01(B). As relevant here, these include 

documentary materials, regardless of physical form or 

characteristics . . . made or received by any governmental 

agency in pursuance of law or in connection with the 

transaction of public business and preserved . . . by the agency 

or its legitimate successor as evidence of the organization, 

functions, policies, decisions, procedures, operations or other 

activities of the government . . ..

A.R.S. § 41-151.18; see also § 39-121.01(B). Public records also include three 

common-law categories: those records made by a public official for the 

dissemination of information; those records that agencies and officials keep 

as directed by law in the discharge of official duties or as evidence of official 

conduct; and any written record of transactions of an agency or officer kept 

as a convenient and appropriate method of discharging official duties, even 

if not required by law. Salt River, 168 Ariz. at 538–39 (quoting Matthews v. 

Pyle, 75 Ariz. 76, 78 (1952)). 

¶10 For a court to hold that a document is not a public record, the 

party opposing disclosure must show that the document is personal or 

private or has no “substantial nexus” with government activities. Salt River, 

168 Ariz. at 541 (1991). To determine this, the court must consider the 

“nature and purpose” of the document, which requires a “content-driven” 

and “fact-specific” inquiry. Griffis, 215 Ariz. at 4–5, ¶¶ 10, 15. In conducting 

this inquiry, the trial court should review the disputed documents in camera. 

Griffis, 215 Ariz. at 5, ¶ 15; Carlson, 141 Ariz. at 490–91; Matthews, 75 Ariz. at 

81; Lunney, 244 Ariz. at 179, ¶ 29. 

¶11 As to the second step, the party opposing disclosure bears the 

burden “to overcome the legal presumption favoring disclosure.” Cox Ariz. 

Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14 (1993). To do so, the party must 

“specifically demonstrate how production of the documents would violate 

rights of privacy or confidentiality,” or how disclosure would be 

detrimental to the state’s best interests. Id. The party may not rely on “global 

generalities” of possible harm, but must specifically demonstrate how 

disclosure of particular information will adversely affect the party’s rights 

regarding one of the three countervailing interests. Judicial Watch, Inc. v. 

City of Phoenix, 228 Ariz. 393, 399–400, ¶¶ 29–30 (App. 2011). 
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¶12 Johnson argues the Agreement controls, that it classifies all 

the disputed documents as confidential, and accordingly the Town cannot 

disclose any documents Johnson provided under the Agreement. A party 

cannot enforce a term of a contract requiring an act which is illegal or 

contrary to public policy. Green Cross Med., Inc. v. Gally, 242 Ariz. 293, 296, 

¶ 10 (App. 2017). Thus, the Agreement is void to the extent that it would 

require the Town to take actions contradictory to Arizona’s public records 

law. The same is true for the Agreement’s definition of “Confidential 

Information”: insofar as it would prevent the Town from disclosing 

documents that it should otherwise disclose under the public records law, 

the Agreement does not control here. Moorehead v. Arnold, 130 Ariz. 503, 505

(App. 1981) (“The promise of confidentiality standing alone is not sufficient 

to preclude disclosure. If the promise of confidentiality were to end our 

inquiry, we would be allowing a city official to eliminate the public’s rights 

under A.R.S. [§] 39-121.”) (citation omitted); see also Am. Power Prod., Inc. v. 

CSK Auto, Inc., 242 Ariz. 364, 370, ¶ 22 (2017) (parties are free to define terms 

“[a]s long as the contract is legal and enforceable”). 

¶13 Johnson has not raised a substantial question of whether the 

documents at issue are public records. Although the disputed documents 

are not part of the record before us, the burden was on Johnson to establish 

its claim that they are not public records. Griffis, 215 Ariz. at 6, ¶ 16. Johnson 

and the Town—each of whom have access to all the disputed documents—

agree that Johnson provided the documents to the Town in furtherance of

their negotiations for the Town to buy utility operations from Johnson. This 

means the parties agree that the disputed documents are documentary 

materials received by a government agency in connection with the 

transaction of public business and preserved by the agency as evidence of 

governmental activities. The documents thus fall squarely within the 

statutory definition of public records. A.R.S. §§ 41-151.18, 39-121.01(B). 

¶14 The trial court stated in its judgment that the countervailing 

interests “exception allows a public body to restrict access in certain 

circumstances but does not authorize the court to direct the public body to 

do so.” This is incorrect. Arizona case law allows the agency or officer to 

determine whether an exception applies “in the first instance . . . but under 

no circumstances should [that] determination be final. It rests within the 

jurisdiction of the courts of the state to determine these questions.” 

Matthews, 75 Ariz. at 81; see also Griffis, 215 Ariz. at 5, ¶ 15 (“In camera 

review of disputed documents also reinforces [the Arizona Supreme] 

Court’s previous holding that the courts, rather than government officials, 

are the final arbiter of what qualifies as a public record.”). 
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¶15 Johnson failed to demonstrate specifically how the release of 

these records will adversely affect its rights of privacy or confidentiality, or 

the state’s best interests. As evidence of confidentiality, Johnson directs our 

attention to the Agreement and the fact that it transferred files via an FTP 

server. As stated above, the Agreement does not control here; that the files 

are on an FTP server is legally irrelevant. A.R.S. § 41-151.18 (“regardless of 

physical form or characteristics”). The parties have also made oblique 

references to the “Carollo Report” that apparently identifies where the 

current utility infrastructure does not meet the Town’s standards. Johnson 

has not specifically identified what, if anything, in that report would 

negatively affect its privacy or confidentiality and has instead offered only 

global generalities of possible harm. See Judicial Watch, 228 Ariz. at 399–400, 

¶ 29. 

¶16 The parties allayed our remaining privacy and confidentiality 

concerns at oral argument. In its opening brief, Johnson stated that the 

public records “include confidential customer information, among other 

things.” The Town, however, represented to this Court that the records do 

not include customer names or other private customer information but 

rather more generalized, aggregated information. The Town also informed 

this Court that it redacts any confidential, personally-identifying

information through its normal public records processing. The 

Commission, as the requestor, likewise informed us that it would not seek 

such information and did not believe such information was within the 

scope of its request. To the extent the records contain any personallyidentifying information, we are satisfied the Town will redact it in 

accordance with Arizona public records law before disclosing the records. 

See A.R.S. § 39-121.01(D)(2) (privilege log); Hodai v. City of Tucson, 239 Ariz. 

34, 43, ¶ 27 (App. 2016) (redaction is one part of the administrative burden 

of producing public records).

¶17 All three parties have requested their attorney fees and costs 

on appeal. The Agreement allows for the award of attorney fees to the 

prevailing party of any action brought to enforce or interpret the 

Agreement. Johnson brought this action to enforce the Agreement. We 

award reasonable attorney fees and costs on appeal to the Town and the 

Commission in an amount to be determined upon their compliance with 

Arizona Rule of Civil Appellate Procedure 21. See Maricopa Cty. v. Maricopa 

Cty. Mun. Water Conservation Dist. No. 1, 171 Ariz. 325, 332 (App. 1991). 
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CONCLUSION

¶18 We affirm the trial court’s judgment. The temporary 

restraining order as set forth in the trial court’s April 13, 2018 judgment 

shall remain in effect until this Court issues the mandate.