By Howard Fischer
Capitol Media Services
PHOENIX -- A judge has slapped down efforts by the state Senate and Karen Fann, its president, to avoid having to disclose various documents related to the audit of the 2020 election.
In a strongly worded ruling Thursday, Maricopa County Superior Court Judge Michael Kemp rejected arguments by the Senate's lawyer that materials held by Cyber Ninjas, the private firm it hired to conduct the examination of the ballots and counting equipment, are not subject to the state's public records law.
Kemp agreed that the law itself deals only with public bodies and agencies, not private firms. But he said that's irrelevant given that Fann made statements that the audit itself is a public function.
And the judge said the fact that the Senate itself does not have possession of the documents produced by Cyber Ninjas is irrelevant.
"Nothing in the statute absolves Senate defendants' responsibilities to keep and maintain records for authorities supported by public monies by merely retaining a third-party contractor who in turns hires subvendors,'' Kemp wrote.
Allowing that to happen, the judge said, "would be an absurd result and undermine Arizona's strong public policy in favor of permitting access to records reflecting governmental activity.''
Significantly, that includes who is financing the audit, as the judge said the $150,000 the Senate agreed to pay Cyber Ninjas "appears to be far short of paying the full cost.
And he said it's irrelevant if Fann and the Senate don't have that information themselves, saying they must now demand those records from Cyber Ninjas which he said is "contractually obligated ... to fully cooperate with the Senate by providing the information or documents'' now that there is litigation.
Kemp was no more impressed by arguments that how the Senate obeys or interprets the public records law is a "nonjusticiable political question'' beyond the reach of courts.
He said it is true that judges cannot tell the Senate how to conduct the audit.
But Kemp said what is at issue here is the enforcement of the public records law, a statute crafted by the legislature itself. And he noted that while lawmakers have amended that law, they have not exempted themselves "which supports the conclusion that the legislature intended intend to bind itself to comply with the public records law.''
