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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY SLATER, Plaintiff/Appellant,

v.

ARIZONA BOARD OF REGENTS, Defendant/Appellee.

No. 1 CA-CV 19-0030 

Appeal from the Superior Court in Maricopa County

No. CV2016-013953

The Honorable Joseph C. Welty, Judge

The Honorable Kerstin LeMaire, Judge

REVERSED AND REMANDED

COUNSEL

Jaburg & Wilk, PC, Phoenix

By Kraig J. Marton, Jeffrey A. Silence

Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix

By Rachel M. Remes

Counsel for Defendant/Appellee

FILED 1-23-2020
SLATER v. ABOR

Decision of the Court

2

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge David B. Gass joined.

W E I N Z W E I G, Judge:

¶1 Dr. Timothy Slater appeals the superior court’s dismissal of 

his complaint against the Arizona Board of Regents (ABOR) under Arizona 

Rule of Civil Procedure 12(b)(6). Accepting his factual allegations as true, 

we conclude that Dr. Slater adequately stated his negligence and breach of 

confidentiality claims. We reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a motion to dismiss, this court “assume[s] the 

truth of [all] well-pled factual allegations and indulge[s] all reasonable 

inferences therefrom.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 

(2008).

¶3 ABOR governs and controls Arizona’s state universities, 

including the University of Arizona. A.R.S. §§ 15-1601(A), -1625(A). ABOR 

has “the powers necessary for the effective governance and administration” 

of the University. A.R.S. § 15-1626(A)(1). To that end, ABOR has adopted 

a comprehensive set of regulations, policies and rules for the “institutions

under its control.” Id. Among ABOR’s policies are Policy Number 1-119 

on “Nondiscrimination and Anti-Harassment,” and Policy Number 6-912 

on “Access to or Disclosure of Personnel Records or Information.”

¶4 Dr. Slater was an associate professor of astronomy at the 

University from 2001 to 2008. He received tenure in 2004. Two months 

later, “several individuals” reported Dr. Slater to University officials for 

“continual sexual joking, banter and unwelcome touching,” but “refused to 

file complaints” for fear of retaliation. The University investigated, 

interviewing Dr. Slater and at least 11 unnamed witnesses who interacted 

with Dr. Slater. Before his interview, Dr. Slater was “assured that the results 

of the investigation would be confidential.”
SLATER v. ABOR

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¶5 The University issued a formal 38-page “Investigative 

Report” on March 31, 2005.

1 The document described various allegations 

of harassment against Dr. Slater and summarized witness interviews. Each 

page was marked “CONFIDENTIAL” in bold and italics. In the end, the 

report concluded that Dr. Slater violated the University’s sexual 

harassment policy but found insufficient evidence of retaliation. The 

University pursued no disciplinary action against Dr. Slater.

¶6 In January 2010, a Chicago-based astronomer submitted a 

public records request to the University for “documents relating to . . . 

charges, investigations, and disciplinary actions against former professor of 

Astronomy Timothy F. Slater.” The University responded in May 2010 

through its Custodian for Public Records in the Office of Institutional 

Research & Planning Support. The Custodian withheld “[m]ost records 

relating to any charges, investigations, and disciplinary actions against [Dr. 

Slater] due to the chilling effect they would have on future possible 

employee investigations,” but disclosed “the final investigative report that 

summarizes the findings” under “A.R.S. § 39-121 and 39-128.”

¶7 Around two months later, the same Custodian of Public 

Records asked the Chicago astronomer to “please destroy any copies” of 

the document because it had been disclosed “in error” and “contrary to the 

policies and practices of the university for release,” raising concern about 

the “chilling effect” that releasing the report “would have on future 

possible employee investigations.”

¶8 Almost five years elapsed before a United States

Representative read swaths of the Investigative Report into the 

congressional record to raise awareness about sexual harassment in 

university science departments. From there, the Investigative Report’s 

contents were widely broadcast and published by news outlets across the 

nation. In one article, the University of Arizona’s Vice President for 

Communications said the Investigative Report should not have been 

disclosed and was not a public record. The Vice President lamented that 

“[s]omebody forgot or screwed up,” but promised that “[c]ontrols have 

been tightened on that process since then.”

¶9 A few months later, Dr. Slater submitted his own public 

records request to the University, seeking the same documents and 

information produced in response to the initial public records request. 

1 Dr. Slater attached a copy of the Investigative Report to his 

complaint in this lawsuit.
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ABOR refused, explaining that “the University does not release records of 

complaint investigations because doing so would be contrary to the best 

interests of the state and compromise the privacy interests of the 

complaining individuals and witnesses.”

¶10 In November 2016, Dr. Slater sued ABOR for breach of 

confidentiality, defamation, false light, public disclosure of private 

information and negligence. His complaint alleges that ABOR owed him a 

duty of confidentiality “by reason of University policy and practice, 

promises made to [him] and state law and regulation,” pointing to express 

and implied contracts, along with his employment relationship. 

¶11 ABOR moved to dismiss Dr. Slater’s breach of confidentiality 

and negligence claims for failure to state a claim under Rule 12(b)(6), 

arguing that “Slater cannot establish that the investigation report was 

confidential” and “cannot establish that the [University] owed him a duty 

to keep that report confidential.” The superior court granted ABOR’s 

motion, reasoning that “[a]s currently pled, [Dr. Slater] fails to show” under 

either “statute or common law” that ABOR owed or breached a duty of 

confidentiality to him “by the release of [the Investigative Report] pursuant 

to a public records request.” After discovery, Slater voluntarily dismissed 

his remaining claims for defamation, false light and public disclosure of 

private information. The superior court entered final judgment. Dr. Slater 

timely appealed.

DISCUSSION

¶12 The superior court dismissed Dr. Slater’s negligence and 

breach of confidentiality claims after concluding that ABOR owed no duty 

of confidentiality to Dr. Slater under any interpretation of his allegations. 

We review de novo the superior court’s dismissal of a complaint under Rule 

12(b)(6), and only affirm if the plaintiff has no right to relief under any 

interpretation of the facts. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 

7 (2012). Our review is limited to the complaint itself and attached exhibits. 

Id. at 356, ¶ 9. We assume the truth of all well-pled factual allegations and 

resolve all reasonable inferences in the plaintiff’s favor, but “mere

conclusory statements are insufficient to state a claim upon which relief can 

be granted.” Cullen, 218 Ariz. at 419, ¶ 7.

¶13 The issue of whether a duty exists is a question of law. Quiroz 

v. ALCOA Inc., 243 Ariz. 560, 564, ¶ 7 (2018). As relevant here, a duty may 

arise from “special relationships recognized by the common law [and]

contracts,” including an employment relationship, id. at 565, ¶ 14 (citing 
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Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 34 (App. 1994); from contract

Diaz v. Phx. Lubrication Serv., Inc., 224 Ariz. 335, 339-40 ¶¶ 15–19 (App. 

2010), or from promises of confidentiality, Cohen v. Cowles Media Co., 501 

U.S. 663, 669-671 (1991) (recognizing an enforceable promise of 

confidentiality under promissory estoppel).

¶14 We reverse the superior court’s dismissal for failure to state a 

claim because the complaint alleges enough facts, assumed as true, to 

recognize a duty of confidentiality. The complaint alleges: “Prior to being 

interviewed[,] Dr. Slater was assured that the results of the investigation 

would be confidential.” The University’s alleged “promise[s]” and 

“assur[ances]” of confidentiality to Dr. Slater are sufficient to state a 

cognizable duty of confidentiality. Diaz, 224 Ariz. at ¶¶ 15-19; Cohen, 501 

U.S. at 669-671. We cannot say “beyond doubt that the plaintiff can prove 

no set of facts in support of his claim which would entitle him to relief.” See 

Newman v. Maricopa Cty., 167 Ariz. 501, 503 (App. 1991) (quoting 5A C. 

Wright & A. Miller, Federal Practice & Procedure § 1357, at 325).

¶15 We need not reach whether ABOR’s administrative policies

create a duty of confidentiality to Dr. Slater, including Policy Nos. 1-119(E) 

and 6-912(C). As the lawsuit continues, however, the superior court might 

conclude that ABOR’s administrative policies represented implied terms of 

Dr. Slater’s employment, akin to personnel manuals that “can become part 

of employment contracts,” Leikvold v. Valley View Community Hosp., 141 

Ariz. 544, 548 (1984), or that these policies represented an actionable 

standard of conduct based on their purpose, Lombardo v. Albu, 199 Ariz. 97, 

100-101 (2000) (citing Restatement (Second) of Torts § 285).2

2 We confine our review to the issues advanced on appeal, and 

therefore do not address the affirmative defenses that may be advanced as 

the litigation proceeds.
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CONCLUSION

¶16 We reverse the superior court’s dismissal of Dr. Slater’s 

claims for breach of confidentiality and negligence and remand for further 

proceedings consistent with this decision.