By Katie Wilcox
The Arizona State Treasurer’s Office does not have to produce data detailing how parents spend taxpayer dollars through the state’s Empowerment Scholarship Account program, a Maricopa County Superior Court judge ruled Monday.
The ruling comes 10 months after 12News filed a lawsuit against state Treasurer Kimberly Yee and Superintendent of Public Instruction Tom Horne, demanding access to public records that detail how parents spend money in the state’s universal school voucher program.
Although the case centers on Empowerment Scholarship Account data, the ruling could have wide-ranging effects on public records practices in the state.
Gregg Leslie, the executive director of the First Amendment Clinic at the Sandra Day O’Connor College of Law at Arizona State University, said the judge’s ruling could send a message to other state agencies: It may be possible to convince a court that complying with public records requests takes too much time.
“That just spells disaster for public accountability,” Leslie said.
The Arizona Department of Education reports that 100,000 students are part of the ESA program that costs the state $1 billion this year.
12News reached a settlement with Horne and the Education Department and received hundreds of thousands of electronic records in March. The released data included evidence of parents buying items that are not allowed under department policy, including condoms, gift cards and trips to Disneyland, among other purchases.
However, 12News and its attorneys argued that the Treasurer’s Office must also release related records and continued the lawsuit against Yee, who is challenging Horne in the Republican primary for superintendent of public instruction.
In a statement Monday, Yee said the Treasurer’s Office, or ASTO, had consistently maintained that it was not the administrator of the ESA program and “cannot be compelled to produce records that are not public records of ASTO.”
The state contracts with ClassWallet, a third-party data management company, to administer the ESA program. The court determined that both Yee’s and Horne’s offices have access to the ESA program’s electronic accounting data but ruled that the Treasurer’s Office would not be compelled to release it.
Yee also said in her statement that withholding the records was an issue of protecting the privacy of children and parents. However, privacy was not the issue the judge considered, though he did consider the time and effort it would take to redact the data.
The data the Education Department released did not include any private information identifying parents or children.
Maricopa County Superior Court Judge Christopher Whitten determined that Yee’s office has only a “limited role in administering the ESA program” and that compelling the Treasurer’s Office to release the records would “impose substantial burdens.”
“The evidence established that ADE, not ASTO, administers the ESA program,” the court said.
The ruling also stated that because the Treasurer’s Office does not “ordinarily review ESA participant records, vendor records, or expenditure records in performing its statutory duties,” producing additional records would involve “considerably more than simply downloading an electronic report.”
The ruling said one expert witness testified that redacting each record manually could take up to 70,000 hours.
The judge concluded that the Treasurer’s Office would have to “conduct an individualized review to ensure that personally identifiable information and other protected information are not improperly released” before producing the records.
However, the Treasurer’s Office released the data to ABC15 in 2023, reflecting the first year of the ESA program’s expansion.
Leslie said redacting information in an electronic dataset should not be the burden that witnesses for the Treasurer’s Office described.
“The opponent’s argument should be that the government should be able to press a button and download a report as part of its reporting process,” Leslie said. “If there’s sensitive information in certain fields, that can be automatically eliminated from the report or redacted programmatically.”
Kate Morris, president and general manager at 12News, said the station is reviewing the ruling and will continue to report on the oversight and documented misuse of the state’s ESA program.
“12News is committed to fair, factual reporting on Arizona’s ESA program,” Morris wrote in an emailed statement. “Our coverage has shown that many families use ESA funds appropriately, while also identifying documented misuse. This lawsuit sought records showing how taxpayer dollars are being spent.”