In defining its legal status, Salt River Project stays firmly in limbo: When sued by customers, the utility takes shelter in its designation as a political subdivision of the state; when challenged to produce public records, it argues that it doesn’t fit the definition of a public body.
A lawsuit by two Arizona cities seeking SRP records finally may produce a ruling that will clarify the utility’s standing: It’s either a public body or it’s not.
Prescott and Prescott Valley filed suit in July to force SRP to turn over public records pertaining to a battle over water rights in the Verde River basin. Maricopa County Judge Paul McMurdie ruled that some of the documents SRP was withholding from the cities as attorney work product must be turned over. Others, the judge ruled, could be withheld.
After that, more documents were requested by the cities’ attorneys and withheld by SRP. The judge has yet to rule whether SRP is a public body under the records law.
Now, attorneys from the cities are asking McMurdie to issue such a ruling. And SRP is arguing that no such ruling is necessary.
There’s a lot at stake for SRP, which has a clear advantage by playing it both ways.
“It’s like they want all the benefits of the law without any of the attendant duties,” said Phoenix attorney David Bodney, who has frequently represented media outlets seeking public records.
On multiple occasions in recent years, Salt River Project has staved off lawsuits by citing its standing as a governmental body, which requires claimants to follow a specific set of procedures before suing.
In 2004, SRP argued successfully for the dismissal of a $15.5 million lawsuit because the plaintiff in that case did not file a notice of claim within 180 days of the impetus for the suit, as is required by state law to sue governmental entities. The suit was filed because electrical service for a business was terminated.
And in 2007, another lawsuit was dismissed because the plaintiff failed to follow the notice-of-claim procedures. In this suit, a man was injured when a power failure caused traffic signals to go out, which resulted in a car accident.
There is little argument over SRP’s status as an agent of state government. The Arizona Constitution specifically notes that agricultural improvement districts are political subdivisions of the state. SRP consists of one such district, along with a for-profit company.
Attorney Ken Sundlof, whose firm represents the utility, said that doesn’t necessarily mean SRP fits the definition of a “public body” under the public records law. He said the public records statute is written specifically to include political subdivisions that spend tax dollars, which SRP does not.
“Nobody’s saying that SRP is a political subdivision for one purpose and not for another,” Sundlof said. “Though poorly written, perhaps the statute was meant to apply only to tax-supported districts.”
Still, Sundlof said SRP always has acted as though the public records law applies. He said the utility never has refused documents on grounds that the law doesn’t apply, therefore a ruling on its status is not necessary.
“That’s not a point that anybody needs to resolve right now,” Sundlof said. “It’s sort of an academic issue that’s hanging out there at this point.”
The matter isn’t so academic for Bodney.
“If SRP is defined as a political subdivision of the state by the Arizona Constitution, then it certainly is a subdivision under the public records law,” he said.
Bodney said SRP’s interpretation of the records statute is faulty. Although ARS § 39-121.01 mentions political subdivisions that are “supported in whole or in part” by state money, he said that language is intended to clarify which “public organizations or agencies” are considered public bodies.
“It’s not limited to those public bodies that receive or spend public funds,” he said. “That (argument) strikes me as a huge stretch.”