Arizona Supreme Court Rules on Arizona Senate’s Use of Legislative Privilege to Withhold Records from Election ‘Audit’

The Arizona Senate must disclose any non-legislative communications surrounding the discredited “audit” of the 2020 election in Maricopa County, the Arizona Supreme Court ruled on Wednesday in American Oversight’s lawsuit seeking documents from the partisan inquiry. 

At issue in today’s ruling was Senate President Karen Fann’s decision to assert legislative privilege — the exemption that can, in certain cases, be applied to shield lawmakers’ discussions about potential legislation from the public eye — as a means of withholding broad categories of “audit”-related documents from release. Rather than waiving that privilege to provide Arizonans a fuller picture of the controversial review’s operations and influences, Fann and the Senate have for months fought for an expansive view of legislative privilege to keep documents hidden from the public.

In January, the Arizona Court of Appeals upheld the trial court’s decision finding that the Senate’s application of the privilege — which for reasons of public interest is interpreted narrowly — was overly broad. On Wednesday, the Supreme Court reversed this determination on how legislative privilege can be applied, but reiterated that the Senate should disclose any communications about non-legislative matters, including administrative functions such as payments to “audit” contractors. After the case is reviewed again in the trial court, the Senate may also be instructed to provide more specific justifications for the records they claim are protected by legislative privilege.

Among the documents listed in the Senate’s vague log of records withheld under claims of legislative privilege are communications between Senate President Karen Fann and Phil Waldron, the retired Army colonel who was active in efforts to overturn the 2020 election. Also redacted are messages between Fann and Doug Logan — the former CEO of Cyber Ninjas — that were sent as early as Feb. 5, 2021, when the election review was first getting off the ground. The privilege log also lists the numerous Trump allies and election-denying activists, identified as “audit personnel” or “consultants” with whom the Senate communicated. While the Arizona Supreme Court confirmed that communications with the Senate’s contractors that are “purely legislative” can be withheld, today’s opinion states that any “communications concerning administrative, political, or other non-legislative matters” must be released.

“While legislative privilege should protect legitimate functions of the legislature, extending the privilege to activities that the Court recognized as uniquely politicized is misguided,” said Heather Sawyer, executive director of American Oversight. “This ruling makes it easier for officials to hide the truth about their motives and conduct from the public. Even under the Court’s expanded view of legislative privilege, it has still ordered the Senate to produce administrative, political, and other unprotected communications withheld so far. Any additional facts will contribute to the public’s understanding of this partisan election review.” 

American Oversight’s lawsuit and investigation led to the release of tens of thousands of pages of other documents that provided evidence of the effort’s partisan and conspiracy-rooted origins and further exposed the sham investigation as an anti-democratic tactic meant to undermine the 2020 election results.

American Oversight first filed suit against the Senate for the release of requested “audit” records in May 2021. Maricopa County Superior Court rejected the Senate’s blanket claim of legislative privilege in October 2021, a decision upheld by the appeals court in January. The Arizona Supreme Court heard oral arguments in the case on May 10, 2022, before issuing today’s opinion. All court filings can be found here.