American Oversight Sues Arizona Senate to Release Audit Records to the Public

On Wednesday, American Oversight sued the Arizona Senate under Arizona’s public records law for failing to release documents related to the Senate’s partisan audit of the 2020 general election ballots cast in Maricopa County.

American Oversight is represented in the lawsuit, filed in Maricopa County Superior Court, by the law firm Coppersmith Brockelman, PLC.  

In April, American Oversight launched an investigation of the state Senate’s partisan audit of the Maricopa County ballots. Following Arizona Senate President Karen Fann’s announcement that the audit team would be led by the firm Cyber Ninjas, American Oversight filed a suite of public records requests with the Senate for documents related to the audit. 

In the weeks since we opened our investigation, only a handful of records have been released and local and national reporting have raised significant questions about the audit’s integrity. Notably, the Senate has not released information on how it intends to aggregate data from the audit. Nor has it released any recruitment or training materials for the presumably dozens of volunteers and employees who are staffing the audit. 

“If President Fann had kept her promise to run a transparent process, we wouldn’t be forced to go to court today,” said Austin Evers, executive director of American Oversight. “Instead, President Fann is playing a legal shell game — insisting that the audit is official state business when it needs to issue subpoenas, then keeping it at arm’s length to duck transparency laws.” 

The records the watchdog requested include contracts with Cyber Ninjas, communications between members of the Senate majority and external parties, plans for securing election materials, information about costs and payments made for the audit, and scripts or other guidelines to be used by the auditors if contacting individual voters. 

On May 4, the Senate notified American Oversight that there “are no more responsive documents to provide at this time because the Senate doesn’t have custody, control or possession of any of the records requested.” A week later, we submitted a supplemental request to confirm the Senate’s position, expressly seeking the following records: 

• Communications between former Secretary of State Ken Bennett and any party engaged in planning or executing the audit;
• Contracts between the Senate, Cyber Ninjas, and third-party vendors;
• Records reflecting the audit’s budget and any external funding it may have received; 
• Plans detailing the audit’s operations including security measures, chains of custody, organization charts, and investigation techniques; and
• Plans and training materials for direct voter contact.

The Senate produced only a few additional records in response to that request, and otherwise maintained its position that the remaining records are not in its possession and, therefore, are not public records.  

“If true, this claim means the Senate or any other public body in Arizona could circumvent public records laws by using public money to hire private contractors to perform government functions and instructing those contractors to maintain sole custody, control and possession of records,” said Roopali Desai, partner at Coppersmith Brockelman. “This attempt to shield the Senate’s illegitimate investigation from public scrutiny poses a serious threat to voter privacy, civil liberties, and confidence in future elections.” 

Under Arizona’s Public Records Law, any public organization or agency “expending monies provided by [the] state,” is required to maintain records of their official activities. Given the Senate’s insistence that the audit is a “valid legislative purpose” — a view that was upheld by a judge when affirming the audit’s authority to issue subpoenas — the public has a right to any records related to the audit, including those in the possession of the Senate’s agents and contractors, including Cyber Ninjas. 

Wednesday’s lawsuit asks a judge to enforce Arizona Public Records Law by compelling the Senate to promptly produce records responsive to American Oversight’s requests. Along with the entirety of American Oversight’s investigation, the litigation aims to provide the public with urgently needed transparency to determine whether the audit is intended to return legitimate results through a secure and honest process — or to serve specific political ends.  

View documents, follow litigation, and track American Oversight’s investigation here.