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AG’s office blocked embarrassing information from public records

AG’s office blocked embarrassing information from public recordsWhen the Arizona Attorney General’s Office released hundreds of documents from an internal probe over suspected leaks to the media, it redacted a plethora of embarrassing information.

The material included rumors of sexual affairs between Attorney General Tom Horne and a subordinate, questions about a key ally’s conduct at work and disparaging comments about the ally, who is entangled with him in alleged campaign finance violations.

Horne’s office in late August released investigator Margaret Hinchey’s case file into the suspected leaks to the Arizona Capitol Times and other media outlets. The file included memos outlining Hinchey’s interviews with eight Attorney General’s Office employees.

Those memos were heavily censored, with large chunks of text blotted out. But when the Maricopa County Attorney’s Office released documents from a joint investigation with the FBI into alleged campaign violations by Horne and ally Kathleen Winn, the file included the memos in their entirety.

Attorneys who specialize in First Amendment issues say there are several reasons why a government agency can withhold information from public records. But the fact that something is potentially embarrassing to a public official isn’t one of them.

Solicitor General David Cole responded that the redactions were based on a 1984 Arizona Supreme Court ruling stating that information can be withheld on grounds of privacy, confidentiality or the best interests of the state.

“In responding to public records requests, it is the policy of this office to redact information that is known to be defamatory and false. It is also the policy of this office to redact extraneous gossip, innuendo, rumors, and hurtful remarks that have nothing to do with the legitimate functions of the agency and that can cause damage to individuals and the agency. Our practices comport with Arizona law,” Cole said in an email to the Capitol Times.

Horne launched the internal investigation in 2011 after the Phoenix New Times submitted public records requests regarding Carmen Chenal, who is in charge of foreign extraditions at the Attorney General’s Office, and wrote about Horne’s hiring of her.

Perhaps the most damaging redacted information is about an alleged affair between Horne, who is married, and Chenal, a former law partner who worked for him at the Arizona Department of Education.

Horne hired Chenal for a six-figure job, despite a spotty record that included the loss of her law license, which she got back with his help. According to Hinchey and the FBI’s interviews with employees at the Attorney General’s Office, Winn often exhibited jealousy of Chenal and other female colleagues she perceived as being close to Horne.

Horne did not respond to an email and a voicemail message from the Capitol Times inquiring about the rumored affair with Chenal. Horne has refused to answer the question when asked by other media outlets.

In at least five of the memos released by the Attorney General’s Office, the interview subject said they had heard the rumors of an affair between Horne and Chenal. Two people told Hinchey that Winn, who was widely regarded as being jealous of Chenal’s relationship with Horne, may have leaked information to the New Times to hurt Chenal.

Hinchey’s memo from her interview of Assistant Attorney General Michael Flynn states, “Flynn said he first heard of the rumor about an affair between Chenal and AG Horne during the campaign, in 2010.”

Former policy adviser Gerald Richard told Hinchey that he had heard the rumor, as did special agent Vern Alley, collector Linnea Heap and legal assistant Lucia de Vernai. All references to those comments, however, were redacted by the Attorney General’s Office.

In another redacted comment, Heap also said Winn claimed that Phoenix New Times reporter Stephen Lemons, who wrote the article that triggered the internal investigation, contacted her to ask about the rumors that Chenal and Horne were having an affair.

Protecting an ally

Hinchey and the FBI’s investigations indicate that Horne sought to protect Winn, who serves as the office’s community outreach director, at several turns.

In an interview with the FBI, then-criminal division chief Jim Keppel said Deputy Attorney General Rick Bistrow asked him whether the office could destroy documents from Hinchey’s file. When Keppel said they couldn’t, Bistrow asked whether they could label Hinchey’s memos as “drafts” or put them into Winn’s personnel file to prevent their release if the office ever received a public records request for them.

Keppel told him that neither action would prevent the documents’ release, according to FBI’s case file.

Investigative files indicate that Horne took other actions to protect Winn. Keppel wrote in his notes and told the FBI that Horne did not want Hinchey to interview Winn, despite several colleagues’ suspicions that Winn was the leak, and insisted that he conduct any interviews with Winn himself.

In another memo that the Attorney General’s Office did not release, Hinchey listed Winn as the most important interview yet to be conducted. “She recently has stated she knows the source of the leak and article(s). If this is shown to be the true source, no additional interviews will be required,” Hinchey wrote in a memo to Bistrow.

Much of the information the Attorney General’s Office removed from Hinchey’s case file involved colleagues’ accusations of unprofessional conduct by Winn.

The office redacted portions of Flynn’s interview with Hinchey in which he said Winn often “inserts herself” into matters outside the jurisdiction of her office, including a political feud in Quartzsite that the office investigated and border issues, even though she is not an attorney or an investigator.

“She wants to be in the know, thus she inserts herself into things like Quartzsite. She has no boundaries and I think she thinks by virtue of working here, she has the authority to insert herself and do her own investigations and play attorney,” Hinchey quoted Flynn as saying. The comment was redacted by the Attorney General’s Office.

In other redacted comments, de Vernai said Winn referred to herself as Horne’s “new girlfriend” and offered to arm wrestle another woman for his affections. Heap said Winn is hostile to several other women in the office and frequently makes disparaging comments about them. De Vernai said Winn even suggested that she spy on one of her rivals.

Conducting outside business

The Attorney General’s Office also redacted the names of colleagues Winn was alleged to have assisted with mortgage refinancing. Flynn told Hinchey that Winn helped obtain mortgage loans for Will Bessette, who worked for Winn in the community outreach division, and human resources director Debbie Jackson, and that she offered to assist Horne with a mortgage refinance as well. All three names were withheld by the Attorney General’s Office.

The redacted documents from the Attorney General’s Office included allegations that Winn, a mortgage broker, was conducting outside business from work. Spokeswoman Amy Rezzonico said Winn only finished up ongoing transactions from before she joined the office, and had done so with Horne’s permission.

But some of the redacted material indicates that Winn’s outside business was ongoing.

“De Vernai is of the opinion that Winn solicits employees as clients, to include Will Bessette, who subsequently received a promotion,” Hinchey wrote.

In an August memo, Bistrow said the three employees who were identified as having received loans from Winn denied the allegations.

Bistrow said he concluded that Winn did not engage in any outside business activities that interfered with her duties.

Hinchey’s memos from interviews with three people in the attorney general’s Tucson office were not part of the FBI file.

FBI documents state that Horne told several employees that he would never fire Winn. In an interview with federal agents, Keppel said that when it was suggested to Horne that Winn might be the source of the leak, the attorney general said, “I can’t fire her. She can really hurt me.” The Attorney General’s Office redacted a similar comment from de Vernai’s interview with Hinchey.

The FBI obtained Hinchey’s interview memos and other documents from her case file as part of an investigation into alleged illegal coordination between Horne’s 2010 campaign and Business Leaders for Arizona, an independent expenditure committee run by Winn that spent about $500,000 on ads targeting Horne’s Democratic opponent. The Maricopa County Attorney’s Office determined that the two illegally coordinated their campaigns, a charge that Horne and Winn denied.

Ironically, Lemons said nobody from the Attorney General’s Office leaked information to him for the story.

Hinchey, who said she learned of the coordination between Horne and Winn during the investigation and turned the information over to the FBI, is preparing to sue the Attorney General’s Office for alleged retaliation against her. Horne denied her allegations. The Republican attorney general said Hinchey, a Democrat, was motivated by political animosity.

The law and public records

Cole said all public records requests received by the Attorney General’s Office are vetted by at least two attorneys from its public records committee.

“Reasonable legal minds can reach different conclusions concerning whether and how a given law may apply in a particular situation,” Cole said in the email to the Capitol Times. “As the custodian of the records in question, Ms. Rezzonico responds to public records requests as directed by the public records committee. I am confident that our instructions to her in connection with the public records request at issue were in full compliance with the law.”

David Bodney, a First Amendment attorney who represents The Arizona Republic, said the Attorney General’s Office appeared to be using a “very generous interpretation of ‘privacy.’”

“Information is not subject to withholding merely because it is embarrassing. There is Arizona case law to that effect. In other words, the information in a public record may be embarrassing to a public official — and these persons are public officials — but mere embarrassment alone is not a sufficient basis for withholding a public record from public inspection.”

Dan Barr, who represents the First Amendment Coalition of Arizona, reviewed several of the documents from the FBI and the Attorney General’s Office. Barr, of the firm Perkins Coie, said he doesn’t think the redacted material meets the requirements for exemptions.

For example, Barr doesn’t see any legitimate reason to redact discussions of Horne and Chenal’s rumored affair, or information about the Phoenix New Times calling to inquire about the rumor. Barr also pointed to the redactions of comments from colleagues who said Winn dresses inappropriately at work or that “so and so is mean to whom.”

“They’re clearly redacting stuff that’s just embarrassing. But I don’t see any privacy interests,” Barr said. “I would say the best interest of the state, frankly, is making sure this information gets out.”

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