The nation’s third-largest public power utility and one of the state’s largest water suppliers avoided a ruling earlier this year that would have determined whether it was subject to Arizona public records law. But now the Salt River Project is again bracing against claims that its quasi-governmental status requires it to maintain and provide access to documents.
“Their attitude is, ‘We’re like government when we want to be, and we’re not when we don’t want to be,’” said Rep. Andy Tobin, a Republican from Paulden.
SRP is actually two entities: the Salt River Project Agricultural Improvement and Power District and the Salt River Valley Water Users’ Association. The former is a political subdivision of the state, created in 1937 to operate the power generation and distribution system, while the latter is a private corporation.
The fact that SRP receives and spends tax money means the utility should be considered a “public body” under the state’s public records law, said David Bodney, a Phoenix attorney who frequently represents media organizations in public records lawsuits.
“It should be elastic enough to encompass SRP,” he said.
SRP has thumbed its nose at an earlier court ruling requiring it to turn over some documents, attorneys for Prescott and Prescott Valley wrote in a special action filed earlier this month. A Maricopa County Superior Court judge will hear arguments Dec. 2 on whether the utility and water provider followed the earlier court ruling.
In the same hearing, Judge Paul McMurdie will hear arguments from the municipalities that SRP is withholding other documents in violation of the public records law. All of the documents in question relate to the ongoing legal battle between the cities and SRP over a large-scale groundwater-pumping operation the cities plan to build.
An SRP spokesman said company officials would not comment on the matter because of a policy to avoid discussing ongoing litigation.
While the argument in court next month will be centered on specific documents, the city’s attorneys will argue a larger point that SRP is a “public body” under state law and must abide by public records law in the same way school districts, cities and state government do.
So far, SRP has refused to acknowledge it is governed by the public records law. Although it argued against Prescott and Prescott Valley’s requests in court earlier this year on grounds that the documents were legal work product and not subject to disclosure, it had repeatedly told the cities the public records law didn’t apply.
It has also given similar replies to media organizations seeking information, including to The Arizona Republic when the newspaper requested spending records earlier this year. SRP complied with the request, but also included a letter from its attorneys saying that the utility was voluntarily turning over the documents, as it is not bound by public records law.
In the initial fight earlier this year over public records, the cities specifically asked McMurdie to rule SRP is a public body. McMurdie, however, declined to do so. Instead, he told the utility to turn over 42 auditor’s letters to the cities – he ruled other documents were legal work product and exempt from disclosure – or face a ruling on whether it is a public body.
SRP opted to turn over the letters, though it heavily redacted them. That redaction violates McMurdie’s order that the documents are public records, attorney Dan Barr wrote in a Nov. 16 court filing.
Colleen Auer, a deputy town attorney for Prescott Valley, said the cities are fighting for the public records because future growth in the area is dependent on the Big Chino Water Ranch, which SRP opposes. The documents give some insight into SRP’s arguments, she said.
A ruling that SRP is bound by the public records law would prevent future court battles over the cities’ records requests.
“We’ll pursue it until we get a result,” Auer said.
One of those potential future legal tussles the cities hope to avoid could be a pair of records requests focused on SRP’s chief lobbyist, Russell Smoldon.
On Oct. 26, Auer filed a request asking for all documents and communications to and from Smoldon regarding the Big Chino project, state water law, Prescott, Prescott Valley and the Department of Water Resources. On Nov. 13, she filed another request for all documents relating to Smoldon’s lobbying expenditures since 2000.
Auer said the reason for the requests about Smoldon was that SRP is using all its resources to fight Big Chino, including bringing the fight to the Legislature.
“They are, in every sense of the word, trying to control what is going on in these communities, as an outsider. It’s scary,” Auer said.
SRP has opened an office in downtown Prescott, even though the region isn’t in its service territory. It also contributed $5,000 to Prescott’s Vision 2050 Committee, a steering committee aimed at planning for the city’s future.
“We cannot afford to lose this fight in the back rooms,” Auer said. “I want to unearth how far this goes. What is being orchestrated? We’re scared enough of the direct evidence we’ve seen. We can only imagine what’s going on behind the scenes.”
SRP has not responded to the requests.
Smoldon, though, told Arizona Capitol Times he was “shocked” by the requests. He said he hasn’t been involved in any of the Big Chino legal action and only knows what the attorneys have provided by way of periodic updates.
“I, honest to God, don’t spend a lot of time worrying about Prescott,” he said. “I’m getting a lot more credit than I deserve for being a mastermind.”
Smoldon also questioned whether the cities had a real reason for asking for the documents and said such broad requests have a chilling effect on public bodies.
“It sounds like a fishing expedition. It should concern anyone who is subject to the Public Records Act, not that SRP is,” he said.
The next step in deciding whether SRP is obliged to follow that law will be taken next month.