Court orders Senate to turn over audit records, appeal likely to come

A judge has ordered the Senate to immediately produce the records it has related to the audit of the 2020 election — even those in the hands of Cyber Ninjas Inc., the private firm hired to conduct the review.

Maricopa County Superior Court Judge Michael Kemp on Tuesday rejected last-ditch arguments by the Senate and Karen Fann, its president, that he should hold off issuing a final order. The judge said there is no need for further litigation, saying that the question involves “undisputed issue of fact.”

And the fact is, he said, the records are public.

More significant, Kemp rejected arguments by the Senate that it is immune to being sued over the records.

Despite the order, however, it could be some time before American Oversight, the self-described nonpartisan watchdog group which is seeking the records, actually gets them. Attorney Kory Langhofer, who represents the Senate, said he will seek an immediate stay of Kemp’s order from the state Court of Appeals.

And even if that fails, the fact remains that some of the documents that Kemp ordered the Senate to produce are in the hands of Cyber Ninjas.

“I can’t produce something I don’t have,” Fann told Capitol Media Services.

Kemp, however, was not impressed.

“Defendants’ claim that they have not even seen the documents of Cyber Ninjas Inc. and its subvendors does nothing to advance their position,” he wrote. “Willful blindness does not relieve Senate defendants from their duties and obligations under the public records law.”

Less clear is whether records produced will give Arizonans a better look at who really is funding the audit.

Cyber Ninjas CEO Doug Logan released a report last week listing what he says are groups that contributed more than $5.6 million, above and beyond the $150,000 spent by the Senate. But those groups, mostly tied to Trump or organizations that allege conspiracies in the 2020 election, are not required under federal law to list their individual donors.

A spokesman for Logan said there would be no further details released. There is no indication whether Cyber Ninjas has that information and whether it would be provided through the public records.

The court order comes as Sen. Sonny Borrelli, R-Lake Havasu City, has asked Attorney General Mark Brnovich to investigate the refusal of Maricopa County to comply with the latest subpoena, including production of the county’s routers that direct computer traffic.

A spokesman for Brnovich confirmed the request. But it remains unclear, however, whether the attorney general has any power to get involved.

It is true that Maricopa County Superior Court Judge Timothy Thomasson ruled earlier this year that the Senate is legally entitled to the information it is seeking. And Thomasson brushed aside a series of contentions by the county that the subpoena was not valid.

Thomasson said, however, the remedy for enforcing that subpoena rests with the Senate itself which has the power to hold anyone who does not comply in contempt. That same statute also says that someone who refuses to comply can be arrested by the Senate sergeant-at-arms.

But, at least for the moment, Fann lacks the necessary 16 votes to get that contempt citation.

Fann is undeterred, saying Tuesday she believes the Senate has other legal methods of getting what it wants. She declined, however, to spell them out just now.

“When it’s all ready to be tied up in a little bow we will do that,” Fann said.

In the meantime Fann now faces the new court order which, unless stayed or overturned by the appellate court, appears to give her little wiggle room.

Fann said the Senate has responded to public records requests with everything it has. But she has argued that materials held by Cyber Ninjas are not subject to those disclosure laws.

Kemp disagreed, saying that the audit is “an important public function” being conducted by the Senate, making Cyber Ninjas and the firms it hired “clearly agents of the Senate.”

That didn’t stop the Senate’s lawyers from saying that there needs to be more evidence presented — and more legal arguments — before Kemp could issue a final order requiring disclosure. But the judge, in his newest order, made it clear that this was a simple matter and he had heard all he needs.

“The courts, rather than government officials, are the final arbiter of what qualifies as a public record,” Kemp wrote.

“Whether a document is a public record under Arizona’s public records law presents a question of law,” he continued. “Further discovery or more legal briefing will not alter, enhance or diminish the court’s findings on this narrow legal issue.”

Nor was Kemp impressed by the claim that the Senate is immune from claims under the public records law.

“Legislators are protected from liability for their ‘words spoken in debate,’ ” the judge said, quoting from state constitutional provisions. And he acknowledged that lawmakers also are immune from being sued personally for their legislative acts.

But what’s at issue here, Kemp said, is a request by American Oversight for a court order compelling the Senate to comply with its duties and obligations under the public records law.

“The verified complaint is in no way a tort claim against any member of the Senate for personal liability in their individual capacities,” he wrote.

“The proposed order and the court’s findings do not, in any way, interfere with or dictate how the legislature conducts its business or its deliberative process,” Kemp continued. “The court is not dictating how the audit is conducted nor interfering in the audit process in any way.”

The judge also pointed out that Fann herself, in earlier court hearings, said the audit is a legislative function within its role under the Arizona Constitution. That means the records involved in conducting it are clearly public and do not fall within the immunity of state lawmakers.

“Such a broad interpretation would render the public records law meaningless as to any legislator at any time under any circumstances,” Kemp said. “This is surely not within the legislative intent of the public records law.”