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Issue: legislative privilege

Senate lawyer wants 720 documents withheld

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)

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 wants host of Ninja records protected

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)

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.