American Oversight | Arizona Capitol Times

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

Maricopa County ballots cast in the 2020 general election are being examined and recounted by contractors working for Florida-based company, Cyber Ninjas, who was hired by the Arizona State Senate at Veterans Memorial Coliseum in Phoenix, Thursday, April 29, 2021. (Rob Schumacher/The Arizona Republic via AP, Pool)

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.”

Court: Ninjas ‘playing with fire’

In this file photo, Doug Logan, CEO of Cyber Ninjas, answers questions at a previous hearing of sorts to discuss the issues with the current Senate-ordered audit of Maricopa County election returns. (Screenshot courtesy of Capitol Media Services)

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.

In this May 6, 2021 file photo Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas, at Veterans Memorial Coliseum in Phoenix. (AP Photo/Matt York, Pool,File)

“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.

Court: Senate must turn over public records

The Arizona Senate must turn over audit records requested by watchdog group American Oversight, including those in the possession of Cyber Ninjas, the Court of Appeals ruled Thursday.

“We find no error with the superior court’s determination that the requested documents are public records that must be disclosed,” Court of Appeals Judge Maria Elena Cruz wrote.

Judges Michael Brown and Jennifer Campbell joined Cruz in the decision. American Oversight sued in May over the state Senate refusing to release records related to Senate’s review of Maricopa County ballots from the 2020 election.

Senate attorney Kory Langhofer said he expects the Senate will ask the Arizona Supreme Court to review the issues.

The Court of Appeals decision comes after Maricopa County Superior Court Judge Michael Kemp on Wednesday gave the Senate an Aug. 31 deadline to turn over public records already in its possession. He scheduled a hearing for September 1 to assess its compliance with the order.

Kemp on August 2 ordered the Senate to turn over certain audit records “immediately.” The Court of Appeals put that order on hold while it considered third-party records, but lifted the stay Thursday.

Cruz wrote that the Senate has a duty under state law “to maintain and produce public records related to their official duties.”

“The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas,” Cruz wrote.

She added that only documents with “a substantial nexus” to government activities are public records, not all files of all government vendors.

“There is no reason why vendors providing ordinary services rather than performing core governmental functions would be subject to the (Public Record Law),” she wrote.

American Oversight in April and May requested a bevy of records about the audit, including agreements related to the audit’s execution; plans and procedures for handling voter information; information about proposed canvassing of voters; communications among members of the audit team; budget and cost information including funders, plans and procedures for each phase of the audit; and chain-of-custody procedures.

Cyber Ninjas not paying attorney

Cyber Ninjas’ attorney is seeking to drop out of two audit-related public records lawsuits, claiming his client stopped paying the bills.

Republican attorney Jack Wilenchik filed motions in Maricopa County Superior Court last week in separate cases brought by liberal watchdog American Oversight and The Arizona Republic, asking the court to approve his firm’s withdrawal as Cyber Ninjas’ attorney of record. Though the Senate and Senate leadership were initially the only defendants in the American Oversight case, the court joined Cyber Ninjas as defendants earlier this month.

The motion filed in the American Oversight case on December 21 only stated “professional considerations now require termination of the representation,” but a nearly-identical motion filed the next day in The Republic case included one key additional piece of information: “Professional considerations – specifically, lack of payment on file – now require termination of the representation.”

Wilenchik did not respond to a request for comment.

Cyber Ninjas CEO Doug Logan told our reporter “I’m aware of their decision to leave,” but declined to comment further on the reason behind that decision.

But the company – which was hired by Arizona Senate President Karen Fann in March to conduct an audit of Maricopa County’s 2020 presidential and U.S. Senate elections – despite having no experience auditing elections – has cried poverty in recent months, arguing the project has put it in a financial hole.

Cyber Ninjas released a financial disclosure in October, claiming it had received $5.7 million to conduct the audit as of September 15, most of which came from outside groups. However, it claimed costs during the same period totaled $8.9 million, leaving it in a financial hole.

And in November, the Arizona Capitol Times reported that the Senate was withholding $100,000 of the $150,000 it agreed to pay Cyber Ninjas.

Last week, The Arizona Republic reported that Wilenchik sent a letter stating the Senate still had not paid Cyber Ninjas that $100,000 and that, without that money, Cyber Ninjas could not afford the $67,000 it estimated it would cost to produce responsive records in the cases.

But Roopali Desai, American Oversight’s attorney, is skeptical of Cyber Ninjas’ claims of financial hardship.

In a court filing this week opposing Wilenchik’s motion to withdrawal, she cited the financial disclosure released in October showing Cyber Ninjas received $5.7 million through mid-September.

“After receiving millions of dollars to fund the audit and after paying its counsel for many months to resist its statutory and court-ordered obligations, any contention by Cyber Ninjas’ that a purported lack of funds prevents it from producing the public records is highly suspicious, to say the least,” Desai wrote.

In her motion, Desai criticized Cyber Ninjas and Wilenchik for ignoring demands by the Senate and courts to turn over public records related to the audit in the company’s possession. “Wilenchik’s pugnacious approach continued even after rulings to the contrary were issued by Arizona courts,” she wrote.

Desai said Wilenchik’s motion is simply another stall tactic.

Desai said the court should reject Wilenchik’s request, because it is not in the public interest. She cited precedent dictating that a corporation cannot appear before the court without counsel, which she said could undermine the court’s ability to enforce orders requiring Cyber Ninjas to turn over audit-related records.

“Permitting Wilenchik to withdraw and Cyber Ninjas to default before the public records at issue are provided to either the Senate, American Oversight or a special master would prejudice the administration of justice, this Court, and American Oversight as the party that has devoted time and resources to this litigation to obtain those records,” according to Desai’s filing.

Desai argued that the harm done to the plaintiffs and court would outweigh any harm to Wilenchik’s firm caused by the non-payment because “there is little left to do at this juncture” of the case.

“Even if they were to come forward and say, in our case, ‘it’s because we haven’t been paid,’ that’s not the end of the inquiry,” Desai said. “The court still has to do and should do an analysis about whether it’s in the best interest of all the other parties and in the interest of justice.”

David Bodney, the attorney representing The Arizona Republic in its records case, did not respond to requests for comment.

Senate attorney Kory Langhofer said his client would not weigh in on Wilenchik’s request. “We view that as something that’s between Cyber Ninjas and their lawyer,” he said.

Judge sets contempt hearing for Senate

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. The final report of the election review in Arizona’s largest county found that President Joe Biden did indeed win the 2020 presidential contest. (AP Photo/Ross D. Franklin)

A superior court judge on Tuesday left open the possibility of finding the Arizona Senate in contempt of court in the coming weeks.

A liberal watchdog group asked in a hearing to hold the Senate in contempt for not obtaining documents from Cyber Ninjas and its sub-vendors, per an earlier court order.

But Maricopa County Superior Court Judge Michael Kemp wasn’t ready to make that ruling, and he won’t until at least Dec. 2, when a contempt hearing is scheduled.

American Oversight in May sued the Arizona Senate for a bevy of records related to the election review of the 2020 general election in Maricopa County. While the Senate has made public some of its audit-related documents, records in possession of contractors and legislative privilege continue to be sticking points.

If Kemp does find the Senate in contempt, Senate attorney Kory Langhofer said he’s not worried about winning at the appellate court level, saying it was “ridiculous” to argue that holding the Senate in contempt would, in turn, compel Cyber Ninjas to hand over its records.

“(Senate President) Karen Fann cannot snap her fingers and get these documents; the problem is Cyber Ninjas,” Langhofer said, adding that American Oversight could sue the contractor itself.

However, American Oversight attorney Keith Beauchamp argued the Senate has not pursued every option to comply with the court order to produce records in Cyber Ninjas’ possession.

Beauchamp offered up some options, arguing the Senate could sue Cyber Ninjas for breaching its contract, reach out for assistance from the Sheriff’s Office, or refer the matter to the attorney general. Beauchamp also suggested the Senate withhold payment and threaten to take back what it’s already paid to the contractor.

But Beauchamp also said the burden is on the Senate, not American Oversight, to show it has taken all reasonable steps to comply with the court’s previous order.

“I have illustrated a number of steps that they could take that they haven’t yet,” Beauchamp said. “And frankly, the only steps they have taken, limited ones, have been because we are seeking contempt.”

He also suggested a more severe option.

“You could fine them,” he told Kemp. “You could put them in jail.”

But Langhofer said the options Beauchamp mentioned wouldn’t solve the problem.

Langhofer said anyone could refer the issue to the attorney general, including Beauchamp, and that he didn’t know of anyone being held in contempt for not contacting law enforcement, especially about an issue being publicly discussed in hearings such as that one. The Senate is already withholding $100,000 of the $150,000 it agreed to pay Cyber Ninjas, Langhofer said. He added that the court should not compel the Senate to sue Cyber Ninjas to avoid being found in contempt.

“I think that moves the court into an advocacy role, which is inappropriate,” Langhofer said.

The Senate notified Cyber Ninjas last week that it breached its contract by not complying with the court order and has also reached out to sub-vendors in an attempt to obtain responsive records. Langhofer said the sub-vendors have not responded, and Cyber Ninjas have continued to respond, essentially, with “pound sand.”

Cyber Ninjas is not a party in the American Oversight lawsuit, though they are a party in a separate public records lawsuit brought by the Arizona Republic. Cyber Ninjas maintains that it should not be a party in either case and that it is not bound by Kemp’s rulings in the American Oversight case.

In a friend of the court brief, Cyber Ninjas attorney Jack Wilenchik said the only record the Senate was entitled to was the Cyber Ninjas’ final audit report and that ruling otherwise would set a “terrifying precedent” for government contractors.

“CNI’s own records are not public records simply because they may relate to that report, which seems to be the contention here,” Wilenchik wrote.

During the hearing, Kemp also did not grant a stay on his Oct. 14 order compelling the Senate to release many of the documents it claimed fell under legislative privilege. The Senate asked for the stay to give it time to seek a stay or review from the Court of Appeals.

Kemp said he thought the Senate would be unlikely succeed on appeal and that the potential harm to the Senate of releasing documents did not outweigh the harm to American Oversight of not receiving them.

“This is a very important public policy issue with very strong public interest in this case,” Kemp said.

He scheduled a status conference at 10 a.m. on Nov. 29.

If the Senate does not dissuade the court from holding a contempt hearing, that will take place at 1:30 p.m. on Dec. 2.

“We want the documents; we don’t want a contempt hearing,” Beauchamp said. “But if we can’t get the documents, we ought to get a contempt hearing to find out why the Senate won’t do everything within its power (to get the records).”

Judge sets deadline for Senate to release public records

The Arizona Senate has an Aug. 31 deadline to produce the rest of requested internal public records related to its election audit, a superior court judge ordered Wednesday.

However, the Court of Appeals is weighing whether audit records in the auditor Cyber Ninjas’ and other private contractors’ possession must be released.

Maricopa County Superior Court Judge Michael Kemp gave the Senate the end-of-month deadline to turn over records it already has and scheduled a hearing for Sept. 1 to assess its compliance with the order. He also ordered the submission of a privilege log to show what documents the Senate is withholding and why. That’s also due Aug. 31.

“The parties have been negotiating since April; I do think that’s a reasonable deadline,” Kemp said.

Kemp on Aug. 2 ordered the Senate to turn over certain audit records “immediately,” but the Court of Appeals put that order on hold while it considers whether the Senate must acquire and turn over audit records currently in the third parties’ hands.

American Oversight, a liberal watchdog group, in April and May requested a bevy of records, including agreements related to the audit’s execution; plans and procedures for handling voter information; information about proposed canvassing of voters; communications among members of the audit team; budget and cost information including funders, plans and procedures for each phase of the audit; and chain of custody procedures.

In May, it sued Arizona Senate President Karen Fann, Senate Judiciary chairman Sen. Warren Petersen and the Arizona Senate over the failure to release those records. Since then, some but not all records have been released, and American Oversight is getting impatient.

“There is a pattern in this case of the defendants indicating that they are reviewing documents, that they will be forthcoming ‘soon,’ ‘as quickly as possible,’ ‘on a rolling basis.’ That has not happened,” American Oversight attorney Roopali Desai told Kemp Wednesday.

Wednesday’s superior court hearing followed a demand from the watchdog group that the Senate justify why it was not releasing records promptly.

Senate attorney Kory Langhofer told Kemp he expected the Senate to produce about 10,000 additional internal records, out of about 22,000 that are under review.

Langhofer said 20,000 of those documents have gone through initial review and are on to a quality control check. He attributed some of the slowdown to attorneys reviewing the documents being less familiar with legislative privilege than other forms of privilege.

“We’ve produced the most important things: the counting policy, the payment issues, the fundraising records, the contracts – we’ve front end loaded the important documents, and we are getting through the rest of them,” Langhofer said. “There’s no evidence that it’s not happening as I’ve described it.”

Desai said she didn’t think it is up to the Senate to decide which documents are most important. She said an order is necessary, especially if the Senate plans to comply anyway and because “as early as three months ago in May, we were told that (the records) were on the verge of production.”

Hours after Kemp ordered the records already in the Senate’s physical possession be released, American Oversight attorney Keith Beauchamp squared off against Langhofer in oral arguments in front of a three-judge Court of Appeals panel.

Judges Maria Elena Cruz, Michael Brown and Jennifer Campbell previously granted the stay of releasing Cyber Ninja records while denying the request to stay all superior court proceedings.

Langhofer said it was possible for a public record to exist but not be disclosable, for example, because it’s not in the physical custody of the public body being requested.

“To the extent the Senate comes into possession of those documents or custody of those records, it will produce them if there’s a substantial nexus to the public function, and they’re not privileged,” Langhofer said.

Beauchamp said his best argument in response to the custody question was a part of the Arizona Public Records Law which says “(a)ll officers and public bodies shall maintain all records, including records … reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state.”

Beauchamp noted that the law goes on to charge public bodies with the duty to “carefully secure, protect and preserve public records.”

“At the end of the day, it’s their obligation to obtain them,” Beauchamp said. “There’s no evidence in the record that they are unable to obtain these documents. They need to comply with Judge Kemp’s order to obtain them. They’ve made no record to suggest that they cannot.”

The appellate court judges did not say when they would issue a decision.

Ninja records public, Supreme Court decides

Cyber Ninjas owner Doug Logan, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican-led Arizona Senate at the Arizona Veterans Memorial Coliseum, during a news conference April 22, 2021.(AP Photo/Ross D. Franklin)

The Arizona Senate has no legal excuse to refuse to publicly produce the records of the firm it hired to audit the 2020 election returns.

In a brief order Tuesday, the Arizona Supreme Court refused to overturn a Court of Appeals ruling that the records of Cyber Ninjas as related to the audit are public.

That leaves intact the finding that the records are the property of the Senate. And that, the appellate judges said, makes them subject to disclosure under the state’s public records law.

The justices also dissolved a stay they had issued to allow the Senate to keep the documents confidential at least for the time being.

But it remains unclear exactly when the public will finally get a look at what has been shielded.

Senate spokesman Mile Philipsen said he knows some of the disputed documents already have been gathered and may be ready for release within days. But with an estimated 60,000 records that have yet to be produced, it may take longer to get the rest of them online for public viewing.

And then there’s the possibility the Senate will try to make new claims about why some of the documents should remain shielded.

That is not speculation. Attorney Kory Langhofer who represents Senate President Karen Fann, told a judge in a parallel case that there may be an argument that communications between senators and the auditors who are under contract could be withheld under the argument that they represent either legislative privilege or attorney-client privilege.

“I will need to confer with our attorneys the best way to comply,” Fann told Capitol Media Services.

But attorney Roopali Desai who represents American Oversight, the organization that filed suit for access, said as far as she is concerned this is the end of the road.

“They need to produce Cyber Ninjas documents,” she told Capitol Media Services. And she dismissed the idea that the Senate could now claim the these are somehow “internal documents” subject to some sort of privilege, given that the Senate all along argued that Cyber Ninjas is not part of the Senate.

Maricopa County Superior Court Judge Michael Kemp has scheduled a hearing for Thursday on what happens next.

American Oversight filed suit in May, more than a month into the audit, demanding all records created, sent and received not only by the Senate but any of the Senate’s agents. Desai said that includes Cyber Ninjas which had a $150,000 contract to review the 2.1 million ballots cast in Maricopa County this past November, compare the results of the presidential race with what was officially reported, and examine the voting equipment used to look for flaws or signs of tampering.

Langhofer said the Senate never disputed its obligation to produce the records it actually has. But he argued there is no requirement to turn over records it does not have, meaning those in the hands of Cyber Ninjas.

That argument didn’t wash with the Court of Appeals.

“Public officials must make and maintain records reasonably necessary to provide knowledge of all activities they undertake in furtherance of their duties,” wrote appellate Judge Maria Elena Cruz. And she said the election audit is both a public function being carried out by the Senate within its constitutional powers as well as an official legislative activity.

Cruz also pointed out that the audit is being conducted with public funds, with Cyber Ninjas and the sub-vendors it hired, acting as agents of the Senate.

“The Senate defendants, as officers and a public body under the public records law, have a duty to maintain and produce public records related to their official duties,” she wrote.

“This includes public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate’s agents,” Cruz continued. “The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”

All that was left undisturbed by Tuesday’s Supreme Court order.

That order comes as Fann along with key senators and staffers are reviewing what is billed to be a three-volume report on its findings. But that report may not be released until next week.

Fann has said repeatedly that the purpose of the audit is not to overturn the results of the presidential election which showed Democrat Joe Biden outpolling incumbent Republican Donald Trump in Maricopa County. The Biden margin was enough in the state’s largest county to counter strong Trump support in some of the rural counties and give the Democrat the state’s 11 electoral votes.

But she said it will prove useful to find out if changes are needed in state laws governing how future elections are conducted.

Senate argues against release of audit records

The Arizona Senate doesn’t have to produce records for its election audit because they aren’t in the physical custody of the chamber, the Senate’s attorney said Wednesday in court.

Maricopa County Superior Court Judge Michael Kemp heard oral arguments today in the public records lawsuit brought by liberal watchdog group American Oversight against Arizona Senate President Karen Fann, Senate Judiciary chairman Sen. Warren Petersen and the Arizona Senate.

The group sued in May, seeking a bevy of records from communications between Senate audit liaison and former Secretary of State Ken Bennett and people involved in planning and executing the audit, contracts between the Senate, Cyber Ninjas and other third-party vendors. They’re also looking for records related to the budget and funders of the audit, plans about the audit’s operations and plans for direct voter contact, but the group was met largely with responses that the requested records were not in the Senate’s possession.

Since then, the group has received some records – emails to-and-from Fann, service agreements with groups providing security and other communications. The Senate has released about 1,200 pages of records, attorney Kory Langhofer, who’s defending the Senate, said. He said that about 15,000 more documents are being reviewed for release as long as they’re not found privileged or confidential.

“That’s what the Public Records Act requires and that’s what the Senate is doing,” Langhofer said. “What we’re litigating here is additional set of documents: documents that are not in our custody and that are only available to the vendors.”

However, the Senate has released little more in regards to its contractors, nor does it intend to.

Langhofer said that because these other records are in the physical custody of the Senate’s third-party contractors, not the Senate itself, they’re not subject to public records laws.

Attorneys for American Oversight said that kind of interpretation would gut the statute.

“Those documents need to be produced; otherwise, the public record statute will have a gigantic loophole that agencies can drive a truck through that will shield them from permitting the public to know what the government is up to,” American Oversight attorney Keith Beauchamp said. “No matter which side of the political aisle you’re on, that’s a bad thing.”

Kemp noted the public doesn’t know the cost of the audit.

“Mr. Langhofer, isn’t the public entitled to know who was paying for this, what President Fann referred to as ‘constitutional and legislative function,’ this important constitutional duty, isn’t the public entitled to know who’s paying for this? Besides the $150,000 that the senators already appropriated?” Kemp asked.

Langhofer said that the public is entitled to “know the information that’s in records that the public records law requires to be produced,” adding that the Public Records Act is the only basis for the public’s claims to records, not the state constitution or common law.

“That’s a great political argument,” he said. “They should talk to the legislature about it.”

Kemp said he would have a written ruling in seven to 10 days.

Last week, The Arizona Republic filed a special action in Maricopa County Superior Court seeking financial records and communications about the audit. The Senate has moved to consolidate the two.

Senate lawyer wants 720 documents withheld

The attorney for the Senate is asking a judge to delay any move to force lawmakers to immediately surrender some audit documents.

In new court filings, Thomas Basile told Maricopa County Superior Court Judge Michael Kemp he is convinced that an appellate court ultimately will conclude that the Senate is entitled to shield about 720 disputed documents from public view.

More immediately, Basile said that if the Senate is forced to surrender the documents now, it won’t matter if it turns out that the Supreme Court concludes that Kemp’s ruling was in error. That’s because it instantly would open them to inspection by anyone.

“In other words, it is impossible for the Senate to comply with the court’s order but still preserve and maintain any right to meaningful review of its privilege claims,” he said. And Basile pointed out to Kemp that even he said that the issue of legislative privilege “will likely be resolved by the higher courts.”

“A stay will ensure that the appellate courts are afforded an opportunity to do precisely that,” the attorney said.

The move is drawing derision from American Oversight, the proclaimed nonpartisan watchdog group that sued for the documents and, to date, has won at every round.

“Time and time again, the Senate has refused to comply with our public records requests,” the organization said in a Twitter post. “But the law is on our side.”

And American Oversight also pointed out that Kemp, in last week’s order directing production, underlined the importance of prompt action.

“The stakes could not be higher and transparency, which is at the heart of the public records law, substantially outweighs any concern regarding chilling future legislative deliberations,” the judge wrote.

At the heart of Basile’s request to Kemp is his belief that the judge, in ordering production of the documents, committed several errors.

That first error, he told Kemp, was his rejection of the idea that “legislative privilege” is absolute. Instead, Basile said, the judge appears to have adopted the belief that such privilege can be overruled based on a balancing test.

“No Arizona court has ever suggested that the legislative privilege is a qualified one,” Basile wrote. And he warned of the kind of precedent that a balancing test might set.

“If in fact the public records act can curtail otherwise cognizable privileges in furtherance of some ostensible public interest, then it is not clear why the same principle would not extend to, for example, the attorney-client privilege,” Basile said.

The Senate’s attorney also told the judge he was wrong to conclude that the only time lawmakers can claim the privilege to keep documents and communications secret is when they are discussing pending legislation.

“Legislative fact-finding investigations, such as the audit, are themselves an integral part of the deliberative and communicative process because they are necessary antecedents to the task of formulating and debating legislation,” Basile said.

And the attorney also took a swat at Kemp’s conclusion that the Senate, by having a public hearing to question its consultants about what they found – the judge called it “more akin to a press conference” – effectively waived any right to claim that the documents behind those findings were confidential.

“The Senate is aware of no authority for the notion that legislators’ questioning of third-party witnesses in the Senate chamber is anything other than a legislative function, let alone a ‘political’ act akin to a ‘press conference,’ ” Basile said.

And even assuming that the Senate has waived privilege to certain documents – a point Basile stressed he is not conceding – there is no authority to say that action waives any legislative privilege to any other documents.

But the main argument concerns the harm he said that would occur if the Senate were forced to disclose the documents now even as it seeks review of Kemp’s ruling. Put simply, Basile said, if the appellate courts determine that the disputed documents are privileged, then the compelled disclosure would, by definition, “irreparably injury the Senate.”

He said it would be one thing if the status of the records were at issue in a different kind of lawsuit, where lawyers from one side are seeking what the other side possesses. In that case, Basile said, a court could enter a protective order forbidding the receiving attorneys from sharing the documents with anyone else.

That isn’t the case here. Basile said if the Senate is forced to surrender the documents now, the whole appeal effectively becomes moot because it would be too late to undo the damage he said the Senate will incur.

The attorney said he understands the claim by American Oversight for “transparency.”

“But the Senate already has made what is likely the largest production of public records in Arizona history,” Basile told Kemp.

“The approximately 720 documents that remain withheld solely on legislative privilege grounds equal to only around 3% of the total universe of audit-related public records released to date,” he continued. “And a large number of them already have been produced in redacted form.”

Even American Oversight acknowledges what has been done so far, though its numbers are different. It says that its lawsuit already forced the release of more than 80,000 pages of records, including emails.

Senate says lawmakers not subject to public record laws

Senate President Karen Fann is taking the position that Arizona courts cannot force her or any other member of the Arizona Legislature to comply with the state’s Public Records Act.

In a new court filing, attorney Kory Langhofer who represents the Prescott Republican and the entire Senate, is asking Maricopa County Superior Court Judge Michael Kemp to throw out a claim by a self-described nonpartisan watchdog group to get access to all documents and materials related to the Senate’s audit of the 2020 election results.

Langhofer said the Senate has or will produce documents in its possession. Ditto with those in the possession of Ken Bennett who was tapped by Fann to be her liaison with Cyber Ninjas, the private company hired to conduct the audit.

The only exception, Langhofer said, are those which are protected as privileged or confidential.

He said, though, what American Oversight wants are documents that are in the hands of Cyber Ninjas or other companies it has, in turn, hired as subcontractors.

Langhofer said the Public Records Act does not apply to private companies. And he rejected arguments by attorney Roopali Desai that the records are public because the only reason Cyber Ninjas got the materials in the first place was because they were subpoenaed by the Senate.

But Langhofer has a backup legal argument just in case the judge does not read the scope of the Public Records Act as narrowly as he does. He told Kemp he has no jurisdiction in the fight.

The Arizona law spells out that public records and other matters in the custody of any officers “shall be open to inspection by any person at all times during office hours.”

Langhofer concedes that the Senate is a “public body” and lawmakers are “public officers” who, in any other circumstance, would be covered by the law.

Only thing is, he said, they are not subject to it.

“The Arizona Constitution entrusts each house of the Legislature plenary power to order its own internal procedures and affairs,” Langhofer wrote.

More to the point, he said even if there is a question — a point he is not conceding — courts are powerless to determine if lawmakers need to comply with the laws they enacted.

“Statutory measures (such as the Public Records Act) necessarily subordinate to this constitutional function,” Langhofer wrote. “Allegations concerning the legislature’s compliance with them present nonjusticiable political questions.”

If the courts agree, that would do more than leave American Oversight without a legal remedy. It also could set the stage for setting a new precedent which could leave all Arizonans powerless to use the Public Records Act to demand everything from legislative documents to letters sent to lawmakers and texts they send and receive.

But Dan Barr, attorney for the First Amendment Coalition, said he believes courts will reject any effort by Fann and her legal adviser to rule that lawmakers need not comply with the Public Records Act. He said they are clearly public officers.

“I don’t buy this notion that even though the state legislature, passing the public records law, didn’t have the power to bind itself to the law,” he said. “That’s sort of nuts.”

And Barr said that while Langhofer is relying on the constitutional provisions allowing lawmakers to set their own rules, the laws on public records actually predate the 1912 Arizona Constitution.

He also brushed aside claims that courts have no right to tell another co-equal branch of government how they have to behave.

“The (U.S.) Supreme Court decided years ago … about courts having authority to tell other branches of government what they can and can’t do,” Barr said.

“Courts strike down statutes all the time,” he said. “Courts rule on actions taken by the governor all the time.”

The lawsuit, filed last month, does not seek access to the ballot themselves.

Maricopa County turned them over under subpoena. And they are not public records.

And Fann already has made public the contract documents between the Senate and Cyber Ninjas.

But the lawsuit says at least part of what is missing are any contracts involving third-party vendors that the Senate directly or indirectly retained through Cyber Ninjas.

Desai also wants any records reflecting the audit’s budget and any external funding that may have been received.

Fann has told Capitol Media Services the only thing she knows about is the $150,000 that the Senate has agreed to pay.

That clearly is not covering the cost of the audit which has now been going on for months. And the America Project, started by a millionaire who says the election results were fraudulent, is trying to raise $2.8 million “to support and pay for expenses of the Maricopa Audit.”

It was founded earlier this year by Patrick Byrne, the former CEO of overstock.com. Byrne, in an interview earlier this year with ntd.com, said he was setting up the organization to continue the fight over the 2020 election results.

“It was a fraudulent election,” he told the television network. “It didn’t end for us on Jan. 20.”

So far the group, operating a site at “fundtheaudit.com,” says it has raised more than $1.9 million.

Fann said she has been promised there will be an accounting at the end of the audit. But questions remain as to how much will be made public.

The American Project was set up under a section of the Internal Revenue Code as a “social welfare organization.” That means it is not legally required to disclose the names of the people who donate.

Desai said her contention that the records being sought from Cyber Ninjas and the other contractors are public are buttressed by statements made by Fann.

The Senate president has said that the purpose of the audit is not to overturn the election results that showed Joe Biden defeating Donald Trump. Instead, Fann said, senators want to examine how the balloting process was handled, at least in Maricopa county, giving information to senators to decide whether changes need to be made in laws governing the conduct of future elections.

That, Desai said, makes everything the Senate — and its contractors — are doing to accomplish that goal a matter of public records.

Langhofer, however, said Kemp has no choice but to dismiss the case.

“When adjudication of a claim will entail incursions into the internal domain of the legislature or executive, respect for those coequal branches necessitates dismissal,” he said. And Langhofer said if there are questions, then they have to be resolved within the branch of government itself or, ultimately, by the people who elect them.

A hearing on the issue is set for next month.

Senate wants host of Ninja records protected

A judge on Thursday said he’s not ready to cite the Arizona Senate and Karen Fann, its president, for contempt of court.

Maricopa County Superior Court Judge Michael Kemp heard arguments by Keith Beauchamp, the attorney for American Oversight, that little has been done since the judge in early August ordered the Senate immediately produce the records it has related to the audit of the 2020 election. That specifically includes those in the hands of Cyber Ninjas Inc., the private firm Fann hired to conduct the review.

Kemp, however, noted that his order was stayed while appellate courts weighed the issue. And that stay, he said, was not dissolved until Sept. 14.

But Beauchamp who represents the self-described nonpartisan watchdog group said little has been done since then other than Fann sending a letter to Cyber Ninjas asking for the records. And he told Kemp that the company has pretty much told the Senate it doesn’t intend to comply.

“That letter to Cyber Ninjas in no way constitutes sufficiently reasonable steps by the Senate to meet their obligations to provide documents on behalf of their various respective agents,” he told the judge. “And given that we don’t have compliance with the court’s order yet, I think the burden is on the Senate to show they have taken all reasonable steps within their power to comply with the court’s order.”

But there’s an even larger fight looming.

Kory Langhofer, attorney for Fann and the Senate, contends that some of what American Oversight wants is protected by “legislative privilege.” That includes not just what may yet be produced by Cyber Ninjas but about 1,000 records the Senate already has but is refusing to surrender.

Beauchamp, for his part, wants Kemp to rule that the privilege — to the extent it exists — covers only communications which are part of the process of lawmakers to craft legislation.

In this case, he said, what is sought relates to how the audit was conducted and the documents that led up to the three-volume report released late last month. And Beauchamp told Kemp none of that relates to the act of legislating.

What Kemp ultimately rules could set the bar for future cases of how much — or how little — lawmakers can shield from public view.

Hanging in the balance is Kemp’s order that the records of Cyber Ninjas are public.

Arizona Senate Republicans hold a 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)

That was affirmed by the Court of Appeals which said the company was performing a core governmental function. And that made its records related to the audit as public as if they were produced by the Senate itself.

Nor was the court impressed by arguments by the Senate that it did not have the records.

“The requested records are no less public records simply because they are in the possession of a third party,” wrote appellate judge Maria Elena Cruz.

That was upheld by the Supreme Court.

The trick now is actually getting them: Beauchamp told the judge the company is balking.

“Cyber Ninjas is not going to give to the Senate all of the documents that the Senate is obligated to produce pursuant to the Court of Appeals order and pursuant to this court’s order,” he said. So he wants Kemp to order the Senate to do more than simply send a letter.

If and when that happens, that still leaves Langhofer with his argument that some of what American Oversight wants is protected by legislative privilege. He said there’s a reason to keep certain documents secret, including things that lawmakers — and, in particular, Fann as Senate president — get from outside contractors like Cyber Ninjas.

“The quality of discussion inside the legislature, the advice that consultants and staffers give to the president will be muted,” Langhofer said. “If what you have to say, particularly when it goes against your own party’s base, is immediately available for public inspection … it will do lasting damage to the quality of discussion and argument behind closed doors of the legislature.”

Kemp, however, suggested that the privilege is not as broad as Langhofer claims.

He said it would be one thing if lawmakers were deliberating on a specific piece of legislation.

“This is an audit, this is kind of an investigation,” the judge said.

“And there isn’t any proposed legislation or anything that they’re deliberating about,” he continued. “So how would the procedures and policies and the way that the audit was conducted, how would that chill deliberations?”

Langhofer argued the judge is looking at it from too narrow a perspective.

For example, he said, there might be communications over whether the audit itself is a good idea or whether the scope of the audit should be expanded. Langhofer said lawmakers need a “safe space” to have those discussions.

And he rejected the idea that the privilege applies only after a bill is proposed.

“What we want the legislature to do is figure out the facts before introducing legislation,” Langhofer said. “That’s the legislature we want, right?”

Beauchamp disagreed.

“The Senate must demonstrate that the disclosure of the record that they’re withholding would impair legislative deliberation,” he said. “Well, they haven’t made that showing. And there aren’t any deliberations.”

Kemp has other issues he needs to decide.

One is whether to consolidate this lawsuit with a separate one brought by Phoenix Newspapers, owners of the Arizona Republic. It filed its own public records lawsuit.

In that case Maricopa County Superior Court Judge John Hannah already has rebuffed a claim by Cyber Ninjas that, as a private entity, it cannot be sued under the state’s public records law. Hannah essentially reached the same conclusion as Kemp that the audit the company performed is a government function, making its activities and records public.

Senate, watchdog group, wrangle over audit records

Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix. The equipment used in the November election won by President Joe Biden and the 2.1 million ballots were moved to the site Thursday so Republicans in the state Senate who have expressed uncertainty that Biden's victory was legitimate can recount them and audit the results. (AP Photo/Ross D. Franklin) — Cyber Ninjas owner Doug Logan, left, a Florida-based consultancy, talks about overseeing a 2020 election ballot audit ordered by the Republican lead Arizona Senate at the Arizona Veterans Memorial Coliseum, as a Cyber Ninjas IT technician demonstrates a ballot scan during a news conference Thursday, April 22, 2021, in Phoenix. (AP Photo/Ross D. Franklin)

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.

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