Arizona Supreme Court Rules on Publicizing Senate Election Audit Documents
By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Senate has no legal excuse to refuse to publicly produce the records of the firm it hired to audit the 2020 election returns.
In a brief order Tuesday, the Arizona Supreme Court refused to overturn a Court of Appeals ruling that the records of Cyber Ninjas as related to the audit are public.
That leaves intact the finding that the records are the property of the Senate. And that, the appellate judges said, makes them subject to disclosure under the state's public records law.
The justices also dissolved a stay they had issued to allow the Senate to keep the documents confidential at least for the time being.
But it remains unclear exactly when the public will finally get a look at what has been shielded.
Senate spokesman Mike Philipsen said he knows some of the disputed documents already have been gathered and may be ready for release within days. But with an estimated 60,000 records that have yet to be produced, it may take longer to get the rest of them online for public viewing.
And then there's the possibility the Senate will try to make new claims about why some of the documents should remain shielded.
That is not speculation. Attorney Kory Langhofer who represents Senate President Karen Fann, told a judge in a parallel case that there may be an argument that communications between senators and the auditors who are under contract could be withheld under the argument that they represent either legislative privilege or attorney-client privilege.
"I will need to confer with our attorneys the best way to comply,'' Fann told Capitol Media Services.
But attorney Roopali Desai who represents American Oversight, the organization that filed suit for access, said as far as she is concerned this is the end of the road.
"They need to produce Cyber Ninjas documents,'' she told Capitol Media Services. And she dismissed the idea that the Senate could now claim the these are somehow "internal documents'' subject to some sort of privilege, given that the Senate all along argued that Cyber Ninjas is not part of the Senate.
Maricopa County Superior Court Judge Michael Kemp has scheduled a hearing for Thursday on what happens next.
American Oversight filed suit in May, more than a month into the audit, demanding all records created, sent and received not only by the Senate but any of the Senate's agents. Desai said that includes Cyber Ninjas which had a $150,000 contract to review the 2.1 million ballots cast in Maricopa County this past November, compare the results of the presidential race with what was officially reported, and examine the voting equipment used to look for flaws or signs of tampering.
Langhofer said the Senate never disputed its obligation to produce the records it actually has. But he argued there is no requirement to turn over records it does not have, meaning those in the hands of Cyber Ninjas.
That argument didn't wash with the Court of Appeals.
"Public officials must make and maintain records reasonably necessary to provide knowledge of all activities they undertake in furtherance of their duties,'' wrote appellate Judge Maria Elenz Cruz. And she said the election audit is both a public function being carried out by the Senate within its constitutional powers as well as an official legislative activity.
Cruz also pointed out that the audit is being conducted with public funds, with Cyber Ninjas and the sub-vendors it hired, acting as agents of the Senate.
"The Senate defendants, as officers and a public body under the public records law, have a duty to maintain and produce public records related to their official duties,'' she wrote.
"This includes public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate's agents,'' Cruz continued. "The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.''
All that was left undisturbed by Tuesday's Supreme Court order.
The Supreme Court ruling pleased Austin Evers, executive director of American Oversight.
"The Arizona Senate's legal maneuvering to conceal these records from the public matches the outgageousness of their so-called audit,'' he said in a prepared statement.
"That ends today,'' Evers continued. "Arizonans can look forward to much-needed transparency, even if it may reveal gross attacks on democracy itself.''
That order this comes as Fann along with key senators and staffers are reviewing what is billed to be a three-volume report on its findings. But that report may not be released until next week.
Fann has said repeatedly that the purpose of the audit is not to overturn the results of the presidential election which showed Democrat Joe Biden outpolling incumbent Republican Donald Trump in Maricopa County.
The Biden margin was enough in the state's largest county to counter strong Trump support in some of the rural counties and give the Democrat the state's 11 electoral votes.
But she said it will prove useful to find out if changes are needed in state laws governing how future elections are conducted.