IN THE ARIZONA COURT OF APPEALS DIVISION ONE AMY SILVERMAN, et al., Plaintiffs/Appellants, v. ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM, Defendant/Appellee. No. 1 CA-CV 21-0720 FILED 6-22-2023 Appeal from the Superior Court in Maricopa County No. LC2021-000183-001 The Honorable Sara J. Agne, Judge REVERSED AND REMANDED COUNSEL First Amendment Clinic Public Interest Law Firm, Phoenix By Gregg P. Leslie, Jacob M. Karr, Zachary R. Cormier, Jack Prew-Estes*, Jake Nelson*, Maria McCabe*, Vanessa Stockwill* Counsel for Plaintiffs/Appellants Johnston Law Offices PLC, Phoenix By Logan T. Johnston, III Counsel for Defendant/Appellee * Certified limited practice students. See Ariz. R. Sup. Ct. 39(c). SILVERMAN, et al. v. AHCCCS Opinion of the Court OPINION Chief Judge Kent E. Cattani delivered the opinion of the Court, in which Acting Presiding Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined. C A T T A N I, Chief Judge: ¶1 This public records case presents a narrow issue of potentially broad import. Arizona law does not require a public entity to create any new record in response to a public records request. But does using encryption to redact non-disclosable information stored in an electronic database necessarily constitute creation of a new record? We hold that it does not. ¶2 This concept is particularly important in a case like this one, in which the public entity uses non-disclosable data as a critical part of its database structure (as the relational keys linking different tables). Thus, requiring the agency to use a one-way cryptographic hash function to redact the non-disclosable data—substituting a unique hashed value that masks protected information without destroying its function in the database—is necessary to ensure a requestor receives, to the extent possible, a copy of the real record. And because such encryption only hides a limited aspect of the record—without adding to, aggregating, analyzing, or changing any of the underlying information—it does not create anything new and does not result in the creation of a new record. Accordingly, and for reasons that follow, we reverse the superior court’s dismissal of the journalists’ public records lawsuit at issue here and remand for further proceedings consistent with this opinion. FACTS AND PROCEDURAL BACKGROUND ¶3 The Arizona Health Care Cost Containment System (“AHCCCS”) oversees the Arizona Long-Term Care System (“ALTCS”). Appellants Amy Silverman, Alex Devoid, and TNI Partners (d/b/a Arizona Daily Star) are journalists researching issues related to services for Arizonans with developmental disabilities, including those services provided by ALTCS. Appellants are seeking public records from AHCCCS to learn what factors affect eligibility decisions during the ALTCS application and screening process. 2 SILVERMAN, et al. v. AHCCCS Opinion of the Court ¶4 In February 2020, Appellants submitted a public records request for data in AHCCCS’s databases for multiple categories of information provided in or related to ALTCS applications. Appellants acknowledged that healthcare-related information would have to be de- identified to comply with privacy rules under the Health Insurance Portability and Accountability Act (“HIPAA”). See, e.g., 45 C.F.R. §§ 164.502(d), .514(a)–(c). Noting that the requested …
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