An attorney for the Senate warned the Court of Appeals Wednesday that if the judges force public disclosure of records related to the audit of the 2020 election it will undermine the ability of lawmakers to do their jobs.
Kory Langhofer told the court it should void a ruling by Maricopa County Superior Court Judge Michael Kemp who rejected broad claims that “legislative privilege” shields communications between and among Republican lawmakers and others involved in what was billed as a “forensic audit” of the election results.
Langhofer argued that it would open up to public scrutiny the discussions that lawmakers had about the audit. And that, he said, would undermine what he said is a constitutional recognition that legislators are entitled to have private conversations and communications because that is part of their job.
But attorney Keith Beauchamp said the flaw in Langhofer’s argument is that the records he is seeking on behalf of American Oversight — the ones that the Senate has refused to disclose — have nothing to do with the role of legislators in crafting laws.
He said the record shows that Senate President Karen Fann, R-Prescott, said she ordered the audit and contracted with Cyber Ninjas not to consider proposed new laws.
Instead, Beauchamp said, Fann said she was responding to concerns of Arizona residents about the accuracy of the tally where Democrat Joe Biden outpolled incumbent Donald Trump in Maricopa County. That margin of victory in the state’s largest county was enough to give the state’s popular vote — and its 11 electors — to Biden.
More to the point, Beauchamp said, is that the audit was not part of some investigation launched by lawmakers to review the adequacy of state election laws or craft new ones.
Even after it was produced, Fann turned it over to Attorney General Mark Brnovich to see if any existing laws had been broken. And it was only at that point, Beauchamp said — after the audit was produced and after all of the communications sought by American Oversight — that there was a discussion of whether existing statutes need to be amended.
Beauchamp told the judges there is a role for legislative privilege. For example, he said if Fann now wants to communicate with colleagues about changes to state law based on audit findings, that would be protected.
But what’s at issue here, he said, are the communications that Fann and others had with Cyber Ninjas and others both in deciding to conduct the audit and then on how the review was being done. None of that, Beauchamp said, is related to the business of legislators, which is crafting laws.
“They can’t make a showing that there was any deliberative or communicative process underway, much less of any impairment of that process,” he said.
Hanging in the balance are perhaps tens of thousands of emails, texts and other documents possessed not only by the Senate itself but also those in the possession of Cyber Ninjas, the private firm Fann retained to conduct the review.
In his earlier ruling, Kemp acknowledged that lawmakers are entitled to certain constitutional protections. He said that is part of ensuring that the “deliberative and communicative process” about proposed laws or other matters within the jurisdiction of lawmakers is not impaired by public disclosure of their deliberations.
The problem, said Kemp, is the Senate wants to extend that to all the communications involving Fann, Sen. Warren Petersen who chairs the Judiciary Committee, the liaisons Fann chose to interact with Cyber Ninjas and even communications with that company and its own sub vendors. And none of that, he said was “an integral part of deliberations or communications regarding proposed legislation.”
“Under such an expansive view there are few activities in which a legislator engages that could not be somehow related to the legislative process,” the judge said. “And the privilege does not extend to all things in any way related to the legislative process.”
Langhofer told the appellate court Wednesday that Kemp was off base in saying that only communications related directly to proposed legislation are exempt from the state’s public records law. The key, he said, is whether public disclosure would impair the ability of the legislature to do its job. That, Langhofer said, includes “the chilling effect that would have on the body.”
And he told the judges that upholding what Kemp ruled and accepting his narrow definition of what lawmakers can keep secret would not be fair.
“That dismissive approach to privilege is not consistent with the way the judiciary has treated its own privilege or executive privilege,” he said. “And these exist for a reason: to encourage candor and, frankly, improved results in what is supposed to be a deliberative body.”
Beauchamp, for his part, said any effort to shield all those documents the Senate does not want to disclose ignores the fact that they are public records.
“There’s no dispute about it,” he said. “There’s a strong public policy favoring disclosure of records.
And when there’s a dispute about whether something can be withheld, Beauchamp said the burden is on the agency holding the records to prove that they are exempt from being made public, not on the person seeking the documents to prove they are public.
“And here, the public’s right to know under the public records law to know what their legislators are up to would be restricted by a broad application of legislative privilege,” Beauchamp said.
More to the point, he said if there is a dispute the court has to weigh the interests of the public against claims of privilege.
Beauchamp told the appellate judges there’s another reason they should reject the Senate’s bid to shield the documents from public view. He said that the Senate, having not only conducted the audit but having a public hearing on the results, waived any claims of privilege.
Whatever the court rules is likely to affect not just the bid by American Oversight for the records but parallel litigation being pursued by Phoenix Newspapers Inc., the owners of the Arizona Republic.
In that case, Maricopa County Superior Court Judge John Hannah also rejected Langhofer’s claim that the documents are subject to disclosure.
“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.”
And Hannah, like Kemp, said it isn’t up 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 legislative privilege by balancing the public interest in legislator confidentiality against the robust disclosure policy of the public records law,” Hannah wrote. And he said that in close or doubtful situations, “the public records law prioritizes public access over legislative secrecy.”
The judges gave no indication when they will rule.