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Arizona Supreme Court: state lawmakers can keep records from the public

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By Howard Fischer
Capitol Media Services
PHOENIX -- State lawmakers are entitled to shield records from public disclosure if they deal in any way with legislative business, the Arizona Supreme Court ruled Wednesday.
In a unanimous decision, the justices overturned lower court rulings which concluded that only documents, emails and texts related to actual proposed new laws can legally be kept from public view. Instead, the court said "legislative privilege'' extends to "any other matters placed within the jurisdiction of the legislature.'' And that includes a decision to launch an investigation.
The court said that provides a broader -- though not absolute -- right to keep more records secret.
Wednesday's ruling most immediately affects more than 1,000 records related to the "audit'' of the 2020 election ordered by Senate President Karen Fann. She had argued -- and the court has now agreed -- that the public was not entitled to see every internal communication among lawmakers about how the review was being conducted.
But it sets the stage for lawmakers -- as well as city councils and county boards of supervisors -- to now claim that same privilege and withhold more records in more circumstances.
In issuing the ruling, Justice John Lopez also made clear he and his colleagues were not anxious to get entangled in the dispute over the audit, calling it a political matter "outside this court's constitutional prerogative.'' He also acknowledged that he and his colleagues were being deferential to "the principles of the separation of powers,'' saying the court did not want to exercise "undue influence'' on the work of legislators.
Lopez said, though, it really is up to voters to decide if lawmakers are doing the right thing.
"Arizona legislators routinely stand for election and, thus, are accountable to the state's electorate who serve as the ultimate arbiters of the wisdom of any legislative action, rather than the courts,'' he wrote.
But Dan Barr, an attorney with the First Amendment Coalition, told Capitol Media Services there's a flaw in that logic.
"The state's electorate needs to find out what these people are doing,'' he said, in order to exercise that oversight. And Barr said Wednesday's decision only makes that more difficult.
He also said the court ruled, in essence, it doesn't matter if the audit ever had actual legitimate legislative purposes or was really just a political exercise by the Republican-controlled Senate. In either case, Barr said, the justices were saying it is all protected under the umbrella of other legislative business.
That point was emphasized in a statement by American Oversight which sued to get all records from the Senate and Cyber Ninjas, the private firm hired by Fann, related to the review of the conduct and results of the 2020 election in Maricopa County.
"While legislative privilege should protect legitimate functions of the legislature, extending the privilege to activities that the court recognized as uniquely politicized is misguided,'' said Heather Sawyer, the group's executive director. "This ruling makes it easier for officials to hide the truth about their motives and conduct from the public.''
Fann hailed the ruling as "a huge victory for the legislative process.''
"We absolutely believe in transparency,'' she said in a prepared statement. "However, there are times when legislative privilege should be exercised so that we can do the jobs that the people of Arizona elected us to carry out.''
American Oversight sued after Fann refused to surrender audit records, claiming legislative immunity.
The Court of Appeals disagreed, resulting in the Senate surrendering about 22,000 records.
But the Senate withheld more than 1,000 others claiming that they were not subject to disclosure, saying they were "internal legislative discussions regarding the audit'' as well as communications regarding the investigation, the audit process and legislative proposals. That sent the case to the Supreme Court.
Andy Gaona, attorney for American Oversight, argued that only communications among lawmakers about actual proposed legislation is subject to privilege and that the audit was really more administrative or political than legislative.
Lopez, in the 17-page ruling, acknowledged the state's public records law is provide access to official records so people can monitor the performance of governmental officials and employees.
But he also said there's a constitutional concept of legislative immunity, designed to allow lawmakers to debate issues without fear of being sued. And legislative privilege, Lopez said, is an extension of that.
More to the point, he said lawmakers need not be considering actual legislation for the privilege to apply.
"Legislative investigation is often sufficient to invoke legislative privilege because such inquiries frequently produce formal legislative action,'' Lopez wrote. "Indeed, curtailment of the privilege's scope to communications concerning proposed or pending legislation would discourage wise or effective evaluation of the very necessity of investigation.''
And he said the legitimacy of a legislative inquiry is not defined by what it produces or does not produce,
"The very nature of the investigative function -- like any research -- is that it takes the searchers up some blind alleys and into nonproductive enterprises,'' Lopez said. "To be a valid legislative inquiry, there need be no predictable end result.''
Lopez cautioned, however, all this is not absolute.
"To be sure, a legislator's act does not warrant privilege merely because it is undertaken in an official capacity,'' he wrote, saying the shield does not cover political or administrative communications.
The justices sent the case back to the trial judge to review each individual claim of privilege for the more than 1,000 disputed documents, directing him to analyze the explanation of the Senate of why each fits within this definition of privilege. But they said the judge can demand to review the documents himself only if the Senate's explanation does not make the case for privilege.
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On Twitter: @azcapmedia