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Cyber Ninjas CEO Doug Logan, center, Ben Cotton, right, founder of digital security firm CyFIR, and Randy Pullen, left, the former Chairman of the Arizona Republican Party and Arizona Senate Audit spokesperson, depart after announcing their findings to the Arizona Senate Republicans hearing review of the 2020 presidential election results in Maricopa County at the Arizona Capitol Friday, Sept. 24, 2021, in Phoenix. (AP Photo/Ross D. Franklin)
A judge on Tuesday rejected a Senate claim that some of its records about the audit are not public.
In a 13-page order, Maricopa County Superior Court Judge John Hannah said he would not accept the arguments by Kory Langhofer, the attorney for Senate President Karen Fann, that he should just accept the Senate’s assertions that the documents at issue are protected by “legislative privilege.”
“The court finds that the Senate has not carried its burden of overcoming the legal presumption favoring disclosure,” the judge wrote. “The record as it stands does not establish that the documents are privileged and that the Senate is entitled to withhold them from the public on that ground.”
But Hannah offered Langhofer and the Senate an “out” of sorts.
The judge told them that they are free to give the documents to him. And then he will decide, after reviewing them privately, whether they are public.
“Otherwise the Senate must disclose the documents forthwith,” he said.
Most immediately, Hannah ordered the Senate to turn over several specific groups of items:
– A string of text messages between Fann and Phil Waldon , described an an “election security analyst,” who the judge said appears to be little more than an informal adviser;
– The draft contract that Fann signed with Shiva Ayyudurai, after the audit started, to separately look at the signatures on ballot envelopes;
– Communications between Doug Logan, the CEO of Cyber Ninjas, and audit liaison Randy Pullen regarding the conduct of the audit;
– Three emails between Sen. Sonny Borrelli, R-Lake Havasu City, and Republican Reps. Leo Biasiucci, also of Lake Havasu City, and Mark Finchem of Oro Valley.
But the ruling eventually could end up setting the stage for disclosure of a flood of documents that the Senate has so far refused to produce. Langhofer told another judge looking at the same issue of privilege that the Senate has about 1,000 documents it considers not subject to disclosure.
In his ruling, Hannah said there is some precedent for legislative privilege. For example, he said, requiring full disclosure of all communications among lawmakers and even among their advisers could “chill” legislators from their deliberations.
But he said that is narrow.
“The legislative privilege does not apply to everything a legislator says or does that is somehow related to the legislative process,” Hannah wrote. “The shield extends only as far as necessary to preserve the integrity of the legislative process.”
Then there’s the state’s public records law.
“The Arizona Legislature has enacted a strong policy favoring public access to information,” the judge said. More to the point, he noted that lawmakers applied that policy to themselves.
What that leaves, Hannah said, is who gets to decide. And he said that can’t be left to lawmakers to determine which of their own records are public and which they can withhold.
“The courts, not current members of the legislature, are responsible for defining the scope of the legislative privilege by balancing the public interest in legislator confidentiality against the robust disclosure policy of the public records law,” the judge said.
“The most important factor that an Arizona court must weigh against an assertion of privilege is the public’s interest in access to information,” he continued. “The balance between the two policies determines the scope of the legislative privilege.”
And there’s something else.
“In close or doubtful situations, the public records law prioritizes public access over legislative secrecy,” Hannah said.
That, then, leads to how to resolve these issues.
The judge said it starts with the fact that whoever is opposing disclosure has the burden of establishing the existence of some privilege. Then, if there is an adequate showing, the burden shifts to the entity wanting the documents.
In this case, it is Phoenix Newspapers Inc., which operates as The Arizona Republic, which filed suit.
Hannah said there is an option for what courts call “in camera” reviews by judges to determine which records fall within a legitimate exception and which do not. But even that idea got a fight from Langhofer who said the fact that these are legislative records makes such review less possible.
In fact, Langhofer argued that the newspaper has to make “a substantial showing” that the Senate’s assertion of privilege was “clear error” before it can ask the court to “commandeer” the materials for review.
“No Arizona case says anything remotely like this,” Hannah said.
The judge also noted that the newspaper has offered several “reasonable, fact-based arguments” that the Senate does not have a valid privilege claim for most of the documents it sought to shield. And he noted that, even without his intervention, the Senate gave up the claim on 19 of the 25 specific records being sought, all of which “demonstrates the potentially broad merit of PNI’s objection to the Senate privilege claim.”
A separate demand for public records, this one filed by American Oversight, is pending in front of Maricopa County Superior Court Judge Michael Kemp. On Tuesday the judge set a hearing for Nov. 2 on whether he should hold Fann and the Senate in contempt for failing to produce the records he has ordered surrendered.
