An attorney for American Oversight charged on September 1 that the Senate has not complied with a court order to surrender all the documents it has dealing with the audit of the 2020 election.
Roopali Desai told Maricopa County Superior Court Judge Michael Kemp that the Senate has failed to produce various text messages between members of the Senate as well as messages sent between senators and others, including officials from Cyber Ninjas, the private firm hired by Senate President Karen Fann to review the election results.
The deadline for production was August 31.
Attorney Kory Langhofer does not dispute that the Senate has not turned over everything in its possession. In fact, he told Kemp, there are 2,885 documents that remain undisclosed.
Langhofer said some of that is designed to give Senate staffers a chance to remove personally identifying information.
But he conceded that there is a large group of documents protected by what he claims is “legislative privilege.” And Langhofer acknowledged to Kemp that list of withheld documents includes texts between Fann and anyone from Cyber Ninjas.
In fact, Langhofer said that as far as the Senate is concerned, any documents not produced about the application process or the ultimate selection of Cyber Ninjas to do the work also is protected from public disclosure as either legislative privilege or covered under attorney-client privilege.
Those claims potentially set the stage for Kemp to appoint a “special master” to go over the disputed documents in what is known as “in-camera review,” where a judge or a neutral third party goes over the materials to determine if they can legally be withheld. But Langhofer said he will fight even that, saying there is no inherent right of someone seeking records to demand judicial review.
“There has to be a reasonable, good-faith showing under the precedents of the Arizona Supreme Court that a claim of privilege is inappropriate before a party is entitled to in-camera review,” he said.
Kemp made no rulings September 1, scheduling another hearing for September 16, to see what progress, if any, has been made in producing the documents.
Langhofer did tell Kemp that, as of September 1, the Senate did not yet have in its possession the draft report promised by Cyber Ninjas about what it found from its review. And he said the final report, which is expected to be in three volumes, will not be ready for at least another two weeks.
Separately, Arizona media outlets and contractors are lining up on opposite sides of the argument about whether a separate batch of audit records held solely by Cyber Ninjas are public.
Robert Roos is urging the Arizona Supreme Court to overturn lower court rulings that private companies can be forced to surrender documents in their possession if they involve public business. Roos, representing the Arizona Chapter of the Associated General Contractors of America, told the justices that there is no basis for such a conclusion,
But Daniel Barr, filing on behalf of the First Amendment Coalition, said there is ample reason to justify the ruling that documents, even in private hands, are subject to the state’s public records law when a public agency – in this case, the Senate – has delegated a “core and delicate governmental function” like an audit to an outside firm.
And Barr, also representing the League of Women Voters, took a swat at arguments by an attorney for the Senate and Fann who have argued against having to obtain and disclose the documents held by Cyber Ninjas. One of those arguments is that the Senate is immune from lawsuits about when and how to comply with the public records law.
In fact, Barr said, the Legislature actually expanded the scope of the law in 1975.
“Given this history, it is disingenuous to conclude anything other than that the legislature has intentionally subjected itself to the public record law’s mandate,” he wrote. “If petitioners (the Senate) want to avoid the transparency that the public records law protects, they can easily seek to do so through statute.”
Langhofer said the Senate is producing everything in their possession that is legally required to be released. Whether that is true is the basis for those court arguments September 1.
But the Senate has balked at turning over anything not in its actual physical possession.
In July, Kemp said there’s no basis for that distinction, noting that Fann herself said that the audit is a public function being conducted by the Senate.
“Cyber Ninjas and the subvendors are clearly agents of the Senate defendants,” Kemp wrote. “Cyber Ninjas and the subvendors’ records would not be subject to disclosure under the public records law if they had not been hired to conduct the audit on behalf of the Senate.”
That was affirmed just last month by the state Court of Appeals.
“There is no dispute that the audit is being conducted with public funds, and that Cyber Ninjas and its subvendors are agents of the Senate,” wrote Judge Maria Elena Cruz for the three-judge panel. More to the point, she rejected the contention that the lack of physical possession of the documents by the Senate means no obligation to produce them.
“Nothing in the plain text of the public records law suggests that physical possession of the public records by the Senate is required,” Cruz wrote.
It is that conclusion that Roos wants the Supreme Court to overturn, what with his association’s members doing work for government agencies and potentially subject to the effects of the ruling.
“Nowhere in the legislative history of the statute is there a clear expression of legislative intent suggesting that the legislature intended to expand the scope of the public records law to the internal documents and communications of third party vendors, in the custody of those vendors, even when no public officer was a party to or in any manner relied upon or used those documents,” Roos told the justices.
But Roos, recognizing the unique nature of this case and the decision of the Senate to farm out the audit, also has a fallback position. He told the justices that if they are going to conclude that the records in the hands of Cyber Ninjas are public, they should confine the precedent solely to election cases.
“Elections are different than other governmental functions and documents created by and about elections are therefore different than other public records,” Roos wrote. “The public’s interest in the transparency of an election audit might thus justify the privacy intrusion into the communications of a third-party vendor hired to audit an election as agent of the Senate.”
But he told the justices that what his clients do falls into a different category.
“There are strong public policy reasons to differentiate between contractors hired to conduct election audits, and those other generic contractors that are hired to perform construction work for state or local governments or even school districts,” Roos wrote.