IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

AMY SILVERMAN, et al., Plaintiffs/Appellees,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, 

Defendant/Appellant.

No. 1 CA-CV 22-0209 

Appeal from the Superior Court in Maricopa County

No. LC2021-000182-001

The Honorable Sally Schneider Duncan, Judge, Retired

AFFIRMED IN PART; VACATED IN PART; AND REMANDED

COUNSEL

First Amendment Clinic 

Public Interest Law Firm, Phoenix

By Gregg Leslie, Jacob Karr, Zachary Cormier, Adam M. Jackson (argued)

Counsel for Plaintiffs/Appellees

Richards & Moskowitz PLC, Phoenix

By William A. Richards (argued), Karen J. Moskowitz, 

Natalya Ter-Grigoryan

Counsel for Defendant/Appellant

FILED 6-13-2023
SILVERMAN, et al. v. ADES

Opinion of the Court

2

OPINION

Presiding Judge Brian Y. Furuya delivered the opinion of the Court, in 

which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

F U R U Y A, Judge:

¶1 The Arizona Department of Economic Security (“DES”) 

appeals the superior court’s order denying its motion to dismiss the 

complaint filed by Amy Silverman and TNI Partners (“Appellees”) and 

entering judgment for Appellees. The order requires DES to disclose

statutorily confidential records about vulnerable and disabled adults, 

finding Silverman, as a journalist, qualifies for the “bona fide research” 

exception to the records’ confidentiality. 

¶2 As explained below, we hold the record is not sufficiently 

developed to determine whether the journalistic activities at issue in this 

case constitute “bona fide research” and qualify for the statutory exception 

to confidentiality of records under Arizona Revised Statutes (“A.R.S.”) § 46-

460(D)(8). Further, even if Silverman’s journalistic activities can qualify, 

A.R.S. § 46-460 vests discretion with DES to determine whether the 

disclosure of otherwise confidential records falls within the statutory

exception. Because the record does not resolve whether DES acted

arbitrarily or capriciously in exercising its discretion under the statute to

deny Silverman’s request, we hold the court also erred in granting 

judgment for Appellees. Thus, although affirming the order denying DES’ 

motion to dismiss, we vacate the judgment for Appellees, and remand for 

further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶3 Vulnerable adults are those unable to protect themselves from 

“abuse, neglect or exploitation by others because of a physical or mental 

impairment.” A.R.S. § 46-451(A)(12). DES is statutorily authorized to

investigate reports of abuse of vulnerable adults through Adult Protective 

Services (“APS”). A.R.S. § 46-451(A)(2), (10). To conduct its investigations, 

APS gathers relevant documents and creates reports documenting its

progress. Because of the sensitive nature of these records, by statute, the 

legislature designated them confidential, generally preventing their 

disclosure. A.R.S. § 46-460(A). But the statute also contains a list of 
SILVERMAN, et al. v. ADES

Opinion of the Court

3

exceptions permitting DES to disclose the records in certain enumerated 

circumstances, such as for “bona fide research.” See A.R.S. § 46-460(D)(8).

¶4 Silverman is a freelance investigative journalist who works

for the Arizona Daily Star, a newspaper owned by TNI Partners. She is

researching how Arizona treats its citizens with developmental disabilities

for a contemplated article. In May 2020, Silverman submitted a records 

request to DES seeking the production, in closed cases, of “[APS] reports, 

investigations and other materials that provided the data for APS quarterly 

reports from April 2019 to March 2020.” Silverman did not explain the 

reason for her request, disclose any research methodology she intended to 

follow, explain how the records would aid her work, or delineate her plan 

to protect sensitive information from further disclosure other than that she 

would permit DES to redact “names and addresses.”

¶5 DES denied Silverman’s request, explaining it believed the 

records were confidential and statutorily protected from disclosure.

Silverman renewed her request—adding a demand for all “incident reports 

received by the [Department of Developmental Disabilities]” in 2019—and 

asserted she planned to research how the State protects vulnerable citizens.

DES also denied Silverman’s renewed request.

¶6 Appellees then filed this case, asking the superior court to 

compel production of the records under A.R.S. § 46-460(D)(8)’s bona fide 

research exception. They alleged the records would help Silverman write 

news articles to “inform the public on the effectiveness of [DES’] services to 

citizens with disabilities.” DES moved to dismiss pursuant to Arizona Rule 

of Civil Procedure 12(b)(6) for failure to state a claim, arguing Appellees’ 

commercial journalistic endeavors did not qualify under the “bona fide 

research” exception. The court held oral argument and later denied DES’ 

motion to dismiss. The same order sua sponte compelled DES to disclose 

the records. The parties, however, had not yet conducted discovery and did 

not request conversion of the motion to dismiss to a motion for summary 

judgment. Nor did the court provide any notice to the parties that it 

intended to resolve the motion to dismiss in this way.

¶7 Following entry of a final judgment reflecting this relief, DES 

timely appealed, and we have jurisdiction pursuant to Article 6, Section 9 

of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
SILVERMAN, et al. v. ADES

Opinion of the Court

4

DISCUSSION

I. Standard of Review 

¶8 Typically, the “denial of a motion to dismiss is not a final 

judgment; we may review such orders only by special action and only in 

unusual circumstances.” State ex rel. Dep’t of Econ. Sec. v. Powers, 184 Ariz. 

235, 236 (App. 1995). But here, the superior court denied DES’ motion to 

dismiss and, sua sponte, granted the relief requested by Appellees. This

result effectively converted DES’ motion to dismiss into a summary 

judgment and granted judgment in Appellees’ favor. Accordingly, this 

court has appellate jurisdiction under A.R.S. § 12-2101(A)(1).

¶9 The court entered judgment without giving the parties notice 

of its intent to convert DES’ motion to dismiss into a motion for summary 

judgment and without giving the parties a chance to present relevant 

material. Appellees contend DES waived any objection to doing so because 

DES did not oppose conversion in its briefing. But DES objected to the 

judgment at oral argument. Appellees have shown no waiver here.

¶10 We will therefore review the validity of the judgment de 

novo, “viewing the evidence and reasonable inferences in the light most 

favorable to the party opposing the motion,” Andrews v. Blake, 205 Ariz. 236, 

240 ¶ 12 (2003), to determine “whether any genuine issues of material fact 

exist,” Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55 ¶ 8 (App. 2007).

¶11 We also review the superior court’s interpretation of statutes 

de novo. Pima Cnty. v. Pima Cnty. L. Enf’t Merit Sys. Council, 211 Ariz. 224, 

227 ¶ 13 (2005).

II. The Record is Insufficient to Determine Whether Silverman’s 

Journalistic Activities Qualify as “Bona Fide Research” Under 

A.R.S. § 46-460(D)(8).

A. “Research” Must Have an Educational, Administrative, or 

Scientific Purpose.

¶12 Citizens generally have a statutory right to access public 

records. A.R.S. §§ 39-121 to -128. That broad right, however, is not without 

limitation. See Carlson v. Pima Cnty., 141 Ariz. 487, 490 (1984). As relevant 

here, the legislature provided that records held by DES related to 

vulnerable adults are confidential and not subject to disclosure unless at 

least one statutory exception applies. A.R.S. § 46-460. One such statutory

exception is that DES may disclose confidential records about vulnerable 
SILVERMAN, et al. v. ADES

Opinion of the Court

5

adults to a researcher “engaged in bona fide research, if no personally 

identifying information is made available.” A.R.S. § 46-460(D)(8). Arizona 

has no controlling authority on what qualifies as “bona fide research”

sufficient to allow disclosure of vulnerable adult records.

¶13 “Statutory interpretation requires us to determine the 

meaning of the words the legislature chose to use. We do so neither 

narrowly nor liberally, but rather according to the plain meaning of the 

words in their broader statutory context, unless the legislature directs us to 

do otherwise.” S. Ariz. Home Builders Ass’n v. Town of Marana, 522 P.3d 671, 

676 ¶ 31 (Ariz. 2023). We look first to a statute’s plain language as the best 

indicator of its purpose and effect, giving all words used in the statute their 

ordinary meaning, interpreting different sections of a statute consistently, 

and giving meaning, if possible, to every word and provision so that none 

are made superfluous. See Secure Ventures, LLC v. Gerlach in & for Cnty. of 

Maricopa, 249 Ariz. 97, 99 ¶ 5 (App. 2020) (citations omitted).

¶14 Here, apparently based on the allegations in the complaint 

alone, the court ruled that Silverman’s journalistic activities were “bona fide 

research,” thereby qualifying her for an exception to the confidentiality 

prohibition against disclosure of DES records about vulnerable and 

disabled adults. DES argues Silverman’s commercial journalistic activities 

cannot constitute “bona fide research,” lest the exception be permitted to 

swallow the entire rule.

¶15 Appellees contend “bona fide research” should be construed 

broadly to apply to all who legitimately try to find answers to questions, 

including journalists like Silverman who are pursuing leads for a story. 

Indeed, some common definitions of “research” may be construed to 

support this understanding. See In re Paul M., 198 Ariz. 122, 124 ¶ 7 (App. 

2000) (holding we may refer to “established, widely respected 

dictionar[ies]”) (citation omitted). For example, Merriam-Webster.com

defines “research” as, among others, “studious inquiry or examination,” 

“the collecting of information about a particular subject,” “careful or 

diligent search,” or “to search or investigate exhaustively.” Research, 

Merriam-Webster.com, https://www.merriam-webster.com/dictionary/

research (last visited June 6, 2023). Other accepted definitions, however, are 

at odds with Appellees’ reading. For example, Black’s Law Dictionary 

defines “research” as including “[s]erious study of a subject with the 

purpose of acquiring more knowledge, discovering new facts, or testing 

new ideas” and “[t]he activity of finding information that one needs to 

answer a question or solve a problem.” Research, Black’s Law Dictionary

(11th ed. 2019). 
SILVERMAN, et al. v. ADES

Opinion of the Court

6

¶16 Given the varying range of possible definitions, the meaning 

of “research” is ambiguous and we must apply other rules of construction

to ascertain its meaning within A.R.S. § 46-460(D)(8). One such rule requires 

that “each word or phrase of a statute must be given meaning so that no 

part is rendered void, superfluous, contradictory or insignificant.” McCaw 

v. Ariz. Snowbowl Resort, 254 Ariz. 221, 226 ¶ 16 (App. 2022), review denied

(May 2, 2023) (quoting Pinal Vista Props., L.L.C. v. Turnbull, 208 Ariz. 188, 

190 ¶ 10 (App. 2004)).

¶17 Here, accepting Appellees’ proposed interpretation would 

impose such minimal requirements as to render the confidentiality 

protections in A.R.S. § 46-460(A) effectively meaningless. Under Appellees’ 

construction, any person seeking information could be said to be

conducting “research”—and therefore qualify for the exception—so long as 

that person is not engaging in fraud or deception. See Bona Fide, Black’s Law 

Dictionary (11th ed. 2019) (defining “bona fide” as, among other things,

excluding “fraud or deceit”); Bona Fide, Merriam-Webster.com, 

https://www.merriam-webster.com/dictionary/bona%20fide (last visited 

June 6, 2023) (defining “bona fide” as “neither specious nor counterfeit,”

“made with earnest intent,” and “made in good faith without fraud or 

deceit”). Under such an expansive reading, the mere act of requesting 

disclosure of the protected documents might itself qualify as engaging in 

“bona fide research,” rendering the records confidential only until someone

asks for them. Such an interpretation is an absurd result, inconsistent with 

the purpose of the confidentiality statute, which we must avoid. See Lake 

Havasu City v. Mohave Cnty., 138 Ariz. 552, 557 (App. 1983) (“Statutes must 

be given a sensible construction which will avoid absurd results.”).

¶18 The legislature’s choice of words in the subject statute makes 

the records Appellees seek confidential; providing such ready and broad 

access to them does not comply with the plain meaning of A.R.S. § 46-460. 

Consequently, we must reject the court’s interpretation and adopt a 

narrower construction. We instead construe the “bona fide research”

exception to further the statute’s purpose of preserving the records’ 

confidentiality. Secure Ventures, 249 Ariz. at 99 ¶ 5. Because the meaning of 

“bona fide research” in the context of confidential records of vulnerable and 

disabled adults is an issue of first impression in Arizona, we consider other 

jurisdictions that have wrestled with the issue for guidance. See Branch v. 

State, 15 Ariz. 99, 104 (1913) (“Where the wording of a statute is ambiguous 

and uncertain . . . cases from other jurisdictions construing a like statute or 

interpreting its words are persuasive and helpful.”).
SILVERMAN, et al. v. ADES

Opinion of the Court

7

¶19 The New York1 case DES cites is instructive. In Newsday, Inc. 

v. State Comm’n on Quality of Care for Mentally Disabled, 601 N.Y.S.2d 363, 365 

(Sup. Ct. 1992), a New York trial court granted a motion to dismiss an action 

to compel disclosure of confidential child abuse records and held journalists 

were excluded from New York’s “bona fide research purpose” exception.

Compare N.Y. Soc. Serv. Law § 422(4)(A)(h) with A.R.S. § 46-460(D)(8). After 

noting reports similar to those being sought by Appellees in this case were 

“made confidential by other statutes,” the Newsday court found bona fide 

research “should be construed as including academic, administrative or 

scientific research” and that the statute’s purpose was “to restrict disclosure 

to those conducting scientific or psychological research.” Newsday, 601 

N.Y.S.2d at 364–65.

¶20 Because of the similarity between the statutes at issue, we find 

the New York court’s approach in requiring an “academic, administrative 

or scientific” purpose persuasive. Id. at 365. However, we are concerned the 

limitation to “academic” purposes may be unduly restrictive. Some 

definitions of the word “academic” could be used to withhold access from 

those conducting research in vocational and commercial fields of study. See

e.g., Academic, Black’s Law Dictionary (11th ed. 2019) (“1. Of, relating to, or 

involving a school or a field of study, esp[ecially] one that is neither 

vocational nor commercial, such as the liberal arts.”). We see no reason to 

exclude those conducting bona fide research in vocational or commercial 

fields of study. Thus, unlike Newsday, we do not restrict potential 

researchers to only “academic” research purposes. Instead, we use the 

broader term “educational.” See Educational, Merriam-Webster.com, 

https://www.merriam-webster.com/dictionary/educational (last visited 

June 6, 2023) (defining “educational” as describing, among other things, 

“the action or process of educating or of being educated”); Educating, 

Merriam-Webster.com, https://www.merriam-webster.com/dictionary/

educating (last visited June 6, 2023) (defining “educating” as, among others, 

“to provide schooling for” and “to train by formal instruction and 

supervised practice especially in a skill, trade, or profession”). Therefore,

we hold that the “bona fide research” exception of A.R.S. § 46-460(D)(8) is 

1 DES directs us to Seattle Times Co. v. Benton Cnty., 661 P.2d 964, 

(Wash. 1983) as persuasive. However, the Seattle Times court construed a 

statute substantially different in wording from A.R.S. § 46-460(D)(8), in that 

it expressly limited access to confidential records to “legitimate research for 

educational, scientific, or public purposes.” Wash. Rev. Code § 13.50.010(8)

(emphasis added). The specific limitations that qualify “legitimate 

research” within this statute make the Seattle Times court’s analysis less 

helpful when interpreting A.R.S. § 46-460.
SILVERMAN, et al. v. ADES

Opinion of the Court

8

limited to “research” for educational, administrative, or scientific purposes. 

And we further clarify that, provided their work otherwise qualifies as 

research, journalists may qualify for the bona fide research exception under 

A.R.S. § 46-460(D)(8).

¶21 Accordingly, the bona fide research exception permits

journalists to qualify for an exception to the ban on the disclosure of 

confidential adult records if their research otherwise qualifies. For example, 

a journalist’s request may be eligible for the exception if their research 

serves a public purpose, such as informing the public of ways DES and APS 

could improve treatment and security of vulnerable adults. Such goals

could be said to further educational or administrative purposes.

B. “Bona Fide” Requires Descriptions of the Records Needed, 

the Purpose of the Research Project, and the Methodology 

to Preserve Confidentiality. 

¶22 The legislature’s inclusion of the phrase “bona fide” limits the 

word “research,” and we must give that limitation meaning. McCaw, 254 

Ariz. at 226 ¶ 16. In general, “bona fide” can mean “[m]ade in good faith; 

without fraud or deceit” and “[s]incere; genuine.” Bona Fide, Black’s Law 

Dictionary (11th ed. 2019). Thus, not every applicant that claims to be a 

researcher may obtain access to DES’ confidential records about vulnerable 

adults. Those making disclosure requests without sufficient support or 

explanation that establishes their research is for educational, 

administrative, or scientific purposes may not qualify as “bona fide.” See 

Secure Ventures, 249 Ariz. at 99 ¶ 5. Whether an applicant qualifies as a 

“bona fide” researcher is a fact question that will require DES and the court 

to examine all relevant factors related to the research, including—without 

limitation—its scope, objectives, and methodologies. But it stands to reason 

that there must be some means of evaluating whether a request satisfies the 

standard we articulate above.

¶23 Although we do not owe deference to an agency’s 

interpretation of the law, we may find agency interpretations persuasive 

and will consider DES’ historical interpretation of A.R.S. § 46-460(D)(8). See

A.R.S. § 12-910(F). DES requires applications for disclosure of its records to 

meet several requirements. Researchers must have a detailed plan that 

shows how the research will help DES improve its operations, show the 

purpose and expected outcomes of the research, and show how they will 

maintain record confidentiality. The bona fide research exception in A.R.S. 

§ 46-460(D)(8) does not require the researcher’s research to benefit DES. But

we find it reasonable to require that researchers provide detailed 
SILVERMAN, et al. v. ADES

Opinion of the Court

9

descriptions outlining the specific information needed, the research’s 

purpose and expected outcomes, and how they will maintain the 

confidentiality of the records.

¶24 Thus, to qualify as “bona fide” under the exception, 

prospective researchers must, at a minimum, provide detailed descriptions 

that outline: the specific information sought and the project’s purpose, 

expected outcomes, and the methodology the researcher will employ to 

maintain the confidentiality of the records.

C. The Record on Appeal is Insufficient to Determine Whether 

Silverman’s Request Qualifies as Bona Fide Research. 

¶25 In the present case, the court entered judgment for Appellees 

before the parties could conduct discovery or the court could take evidence. 

We thus do not know the purpose of Silverman’s research project or her 

expected outcomes, which documents relate to her goals, the scope of her

request, or her methodology to keep the information in the records 

confidential. DES’ dismissal motion was inappropriate because Silverman’s 

request may qualify for the bona fide research exception. But on this 

underdeveloped record, we cannot tell. See Swift Transp. Co. of Ariz. L.L.C. 

v. Ariz. Dep’t of Revenue, 249 Ariz. 382, 385 ¶ 16 (App. 2020) (explaining that 

courts disfavor granting Ariz. R. Civ. P. 12(b)(6) motions). That said, we 

hold the parties must conduct discovery and present sufficient evidence 

before the court may enter judgment in either party’s favor on this issue.

¶26 For that reason, the court correctly denied DES’ motion to 

dismiss. The court erred, however, by granting judgment to Appellees.

III. The Record is Insufficient to Evaluate DES’ Defenses to 

Appellees’ Motion to Compel.

A. DES Has the Discretion to Determine Whether to Grant a 

Request Under A.R.S. § 46-460(D).

¶27 We note another concern that may arise on remand. The 

statute commends to DES the discretion to disclose its confidential records. 

On review of a DES decision, the court should affirm it unless DES acted

arbitrarily or capriciously. Given the procedural posture of this case, we 

decline to determine whether DES acted arbitrarily or capriciously in 

denying the request. 

¶28 As relevant here, A.R.S. § 46-460(A) makes the DES records at 

issue confidential and not subject to disclosure, “except as provided in 
SILVERMAN, et al. v. ADES

Opinion of the Court

10

subsections B, C and D of this section.” In turn, A.R.S. § 46-460(D) provides 

that DES employees “may release any information that is otherwise held 

confidential under this section . . . .” (emphasis added).

¶29 The statute’s use of “may” as a modal verb “indicates 

permissive intent and a grant of discretion.” Garcia v. Butler in & for Cnty. of 

Pima, 251 Ariz. 191, 194 ¶ 13 (2021). Thus, by its terms, the statute confers 

discretion upon DES in determining whether to disclose the records once 

an exception has been established. Obviously, DES cannot exercise its 

discretion arbitrarily or capriciously. See Maricopa Cnty. Sheriff’s Off. v. 

Maricopa Cnty. Emp. Merit Sys. Comm’n, 211 Ariz. 219, 223 ¶ 17 (2005)

(citations omitted). In reviewing DES’ exercise of its discretion here, “we 

review the record to determine whether there has been ‘unreasoning 

action,’ without consideration and in disregard for facts and 

circumstances.” Holcomb v. Ariz. Dep’t of Real Est., 247 Ariz. 439, 446 ¶ 26 

(App. 2019) (quoting Maricopa Cnty. Sheriff’s Off., 211 Ariz. at 223 ¶ 17). A

hypothetical example of such “unreasoning action” could be if DES were to 

deny a request for disclosure solely out of self-interest—as when a 

researcher submits a plan to investigate alleged negligence or incompetence 

by DES, and DES denies access to prevent embarrassing discovery and 

disclosures that might substantiate such allegations. In such a situation, 

denial based solely on self-interest would be arbitrary and capricious if the 

research otherwise qualified as bona fide research. 

B. The Record is Insufficient to Determine Whether DES 

Acted Arbitrarily and Capriciously in Denying Silverman’s 

Request.

¶30 Here, because of the summary disposition, we also do not 

know whether DES has any potential defenses that may insulate its denial 

from being arbitrary and capricious. DES claims, for example, that the 

disclosure significantly burdens its resources because of the vast volume of 

documents requested. This could serve as a defense to the motion to 

compel, as A.R.S. § 46-460(D)(8) places the burden of redacting the records 

on DES. See Hodai v. City of Tucson, 239 Ariz. 34, 43 ¶ 27 (App. 2016) 

(explaining that an “unreasonable administrative burden” can justify the 

denial of a public records request). But we cannot know whether this 

burden is onerous enough to relieve DES from the disclosure order with no

factual findings on the amount of labor required to fulfill the request or 

DES’ resources to meet that need.
SILVERMAN, et al. v. ADES

Opinion of the Court

11

CONCLUSION

¶31 We affirm the portion of the court’s order denying DES’ 

motion to dismiss. We vacate the portion of the court’s order entering

judgment for Appellees. We remand to the superior court for further 

proceedings consistent with this opinion.