The Court of Appeals has rejected the latest bid by Cyber Ninjas to keep secret the records it has related to the audit of the 2020 election.
In an 8-page ruling Tuesday, the judges rebuffed claims by the company that the documents, emails and other items it has are beyond the reach of Arizona’s public records law. The court said once the company started doing the Senate’s work, it became the custodian of any documents related to the audit which, by definition, was a public function.
What that means, the judges said, is that anyone seeking those documents is entitled to request them directly from Cyber Ninjas rather than have to go through the Senate. More to the point, it also means Cyber Ninjas can be sued — and presumably, sanctioned — for refusing to comply.
Tuesday’s ruling drew a sharp response from Jack Wilenchik, the attorney who represents the company.
“The government cannot force private contractors to produce things the government does not own,” he told Capitol Media Services. He said that’s equivalent to a violation of the Fourth Amendment protections against search and seizure.
But the three-judge panel, with its unsigned opinion, rejected the argument that it was opening the files of all government contractors to public inspection.
“Our ruling does not mean that construction companies and office-supply vendors will have to rush to establish new ‘public records’ department,” the judges wrote. “Only documents with a substantial nexus to governmental activities qualify as public records.”
And that, the court said, is clearly the situation here.
“Here, the Senate’s decision to undertake the audit was premised on its oversight authority, an important legislative function,” the judges said.
The senate then “entirely outsourced” that function to Cyber Ninjas and its subcontractors. And that, the court said, makes those audit-related records as public — and subject to being demanded — as if they were held by the Senate itself.
Wilenchik, however, said that the appellate judges are legally off base in trying to draw a legal distinction between the records of companies that provide “ordinary goods and services” to the government, which are not public, and those that perform other functions, in this case, like the audit.
“The court’s claim that Cyber Ninjas is not an ‘ordinary’ contractor is legally indefensible and without any genuine basis in law,” he said. And Wilenchik said he will seek Supreme Court review.
Tuesday’s order is the latest in a pair of bids to get access to what are believed to be tens of thousands of various audit related documents, emails, texts and other communications that Cyber Ninjas has not yet produced.
In one case, American Oversight sued the Senate for all of the records.
Maricopa County Superior Court Judge Michael Kemp already has ordered the Senate to surrender not only the documents it has but also to make every effort to get the ones in the hands of Cyber Ninjas.
Senate President Karen Fann, R-Prescott, wrote to the firm. But Senate attorney Kory Langhofer told Kemp that has not produced the requested items.
That, in turn, has led American Oversight to seek a contempt citation against Fann and the Senate for failing to do more. That case is on hold.
This second case was filed by Phoenix Newspapers Inc. which publishes the Arizona Republic.
In this case, attorneys sued not just Fann and the Senate but also Cyber Ninjas.
That allowed Maricopa County Superior Court Judge John Hannah to directly order the company to surrender the documents. And that order, in turn, led to Tuesday’s Court of Appeals ruling.
The judges said it is the company’s own fault it has wound up in court.
“Cyber Ninjas would not be a necessary party (to the lawsuit) if it had turned over the public records to the Senate,” they wrote. “It is a necessary party by its own actions.”
And the judges also made clear that they believe there was only one way for them to rule in this dispute: order the production of the records.
“To hold otherwise would circumvent the public records law’s purpose, which exists to allow citizens to be informed about what their government is up to,” they wrote.
Tuesday’s ruling, even if affirmed by the Supreme Court, does not mean Phoenix Newspapers will get everything that Cyber Ninjas has.
The judges said any orders to disclose records are subject to claims that they are protected by legislative or other privilege. That, however, would first require Cyber Ninjas or the Senate to provide a list of those documents they seek to withhold and the reasons why, setting the stage for the trial judge to review them and decide which are public and which are protected.
But if the order is upheld, Hannah has made it clear he is running out of patience with the company, its repeated arguments that the judge has rejected, and what he said he believes has been “the defiance of the courts’ authority” in ordering records produced.
“The Ninjas are playing with fire,” he wrote in an Oct. 28 order. “If and when the appellate courts dissolve the stay of this court’s orders, the court is going to enforce them.”
And Hannah said that new arguments for blanket exemptions from the public records law “will not be entertained” unless the appellate court orders otherwise.
“Pleas for more time will fall on deaf ears,” the judge wrote.