In Arizona, the confidentiality of records maintained by the Arizona Department of Economic Security (ADES) concerning the abuse, exploitation, or neglect of vulnerable adults is protected under A.R.S. § 46-460(A). This statute aims to safeguard the privacy and dignity of vulnerable adults by preventing the public inspection of such sensitive information. However, there is an exception to this general rule for "bona fide research," allowing researchers to access these records under certain conditions as stipulated in § 46-460(D)(8). The Arizona Supreme Court's decision in Silverman et al. v. ADES (Arizona Department of Economic Security) provides a significant interpretation of this exception, particularly regarding whether investigative journalists can engage in bona fide research.
The Case of Silverman et al. v. ADES
The primary legal issue in Silverman
et al. v. ADES was whether investigative journalists could be considered as
engaging in bona fide research, thus permitting them access to records related
to the abuse, exploitation, or neglect of vulnerable adults. The Arizona
Supreme Court concluded that investigative journalists could indeed qualify as
bona fide researchers, thereby extending the exception to include journalistic
investigations aimed at uncovering and reporting on matters of public concern.
Legal Analysis and Court's Reasoning
The court's decision was based on a
de novo review of the lower court's judgment and involved an interpretation of
the statutory language of A.R.S. § 46-460. The court defined "bona fide
research" as a researcher genuinely engaging in a good faith study to
acquire knowledge, discover new facts, or test new ideas related to the
reporting or prevention of abuse, exploitation, or neglect of vulnerable
adults. This definition provides a framework for understanding what constitutes
bona fide research and guides ADES in determining whether to release records
under this exception.
Rejection of Narrow Interpretation
ADES argued that the bona fide
research exception should be limited to research that directly assists ADES in
improving its operations. The court rejected this narrow interpretation,
finding no support for it in § 46-460. Additionally, the Court of Appeals had
asserted that bona fide research must serve educational, administrative, or
scientific purposes. The Supreme Court disagreed, stating that this
interpretation would exclude other valid purposes, such as journalistic
investigations into the effectiveness of ADES's methods in responding to
reports of neglect, abuse, or exploitation.
Emphasis on Confidentiality
While the court expanded the scope
of bona fide research to include investigative journalism, it also emphasized
the importance of maintaining the confidentiality of vulnerable adults. The
research should not target specific individuals or disclose personal
identities. Instead, it should focus on broader topics to ensure the protection
of personal information within APS records. This approach balances the need for
public access to information with the need to protect the privacy of vulnerable
adults.
Guidelines for ADES's Discretion
The court provided guidance on how
ADES should exercise its discretion when deciding whether to release records
under the bona fide research exception. Factors to consider include the nature
and purpose of the research, the researcher's qualifications, and the
safeguards in place to prevent unauthorized disclosure. ADES should also
consider reasonable alternatives that satisfy the records request while
safeguarding the public interest, such as redacting personal information.
Impact of the Decision on
Investigative Journalism
The court's decision in Silverman et
al. v. ADES has significant implications for investigative journalism. By
recognizing investigative journalists as bona fide researchers, the court
affirmed the essential role of the press in a democratic society. Investigative
journalism serves as a watchdog, holding government agencies accountable and
informing the public about matters of significant concern. This decision
ensures that journalists can access crucial information needed to investigate
and report on issues related to the abuse, exploitation, or neglect of
vulnerable adults, thereby promoting transparency and accountability.
Textual Interpretation of the First
Amendment
The First Amendment states:
"Congress shall make no law... abridging the freedom of speech, or of the
press..." A textualist originalist would interpret this to mean that any
law restricting the freedom of speech or press must be scrutinized to ensure it
does not infringe upon these fundamental rights as they were understood at the
time of the founding.
Historical Context of the First
Amendment
At the time of the founding, the
freedom of the press was understood to include the right to gather information,
investigate, and report on matters of public concern. Although investigative
journalism as we know it today did not exist, the broader principle of press
freedom encompassed these activities. The press's role in holding government
accountable and informing the public is a fundamental aspect of this freedom.
Application to Silverman et al. v.
ADES
The Arizona law (A.R.S. § 46-460)
generally shields records concerning abuse, exploitation, or neglect of
vulnerable adults from public inspection. However, it includes an exception for
"bona fide research," which the court interpreted to include
investigative journalism.
Upholding the First Amendment
Freedom of the Press
By allowing investigative
journalists access to these records under the bona fide research exception, the
court supports the First Amendment's protection of the press. This access
enables journalists to perform their role in investigating and reporting on
matters of public interest and concern, which is a core function of the press.
Balancing Interests
The court's interpretation balances
the need to protect the confidentiality of vulnerable adults with the public's
right to know and the press's role in uncovering and reporting the truth. The
court provides guidelines for ADES to consider the nature and purpose of the
research, the researcher's qualifications, and safeguards to prevent
unauthorized disclosure, ensuring that the release of information does not
unduly compromise individual privacy.
Original Meaning
The decision aligns with the
original meaning of the First Amendment by ensuring that laws do not unduly
restrict the press's ability to perform investigative functions. The court
rejects a narrow interpretation that would limit the press's access to information
to only certain types of research, thereby upholding the broad protection
intended by the framers.
From my perspective, the court’s
decision in Silverman et al. v. ADES upholds the First Amendment rights of
investigative journalists by ensuring their access to records necessary for
conducting bona fide research. This access is essential for the press to fulfill
its role in a democratic society, consistent with the original understanding of
the First Amendment's protections for speech and the press.
Implications for Future Research and
Journalism
The court’s decision sets a
precedent that investigative journalists can access sensitive information under
the bona fide research exception, provided they adhere to guidelines that
protect the privacy of individuals. This ruling encourages transparency and
accountability in government agencies while safeguarding the rights and dignity
of vulnerable adults. It also highlights the importance of investigative
journalism in uncovering and addressing systemic issues within public
institutions.
Good decision and opinion by our
state Supreme Court.
You can read the opinion HERE
