Court Orders Arizona Senate to Immediately Release ‘Audit’ Records

On Tuesday, Judge Michael Kemp of the Arizona Superior Court of Maricopa County ordered the state Senate to comply with the law and “immediately” provide American Oversight access to records related to the Senate’s partisan audit of Maricopa County ballots. 

Emphasizing the “demands for public scrutiny and substantial public interest,” Kemp again rejected the Senate’s argument that audit records held by Cyber Ninjas, the contractor hired to lead the operation, could be shielded from public release. Read the order here.

In April, American Oversight launched an investigation of the “audit,” submitting public records requests for key documents, including records of the Senate’s communications with Cyber Ninjas. The watchdog group filed suit under Arizona’s Public Records Law in May after the Senate failed to release the requested records.

The Senate argued that certain records sought by American Oversight were in the custody of Cyber Ninjas and were therefore exempt from release, and further, that Arizona’s Public Records Law didn’t apply to it. On July 15, Kemp rejected the Senate’s motion to dismiss the case, writing, “It is difficult to conceive of a case with a more compelling public interest demanding public disclosure and public scrutiny.”

In the 19 days since that initial order, the Senate has continued to withhold the requested records from the public. In a minute entry released by the court along with this week’s order, the court again rejected the Senate’s argument that audit records held by Cyber Ninjas could be shielded from public release. Kemp wrote, in part:

“The audit is being conducted pursuant to the Senate’s legislative functions as outlined in the Arizona Constitution. This was confirmed by Defendant Fann herself. The documents in question are clearly subject to the [Arizona Public Records Law (PRL)]. The preservation and disclosure of these public records pursuant to the PRL are definitely not subsumed within the Speech and Debate immunity clause of the Arizona Constitution. Such a broad interpretation would render the PRL meaningless and unenforceable as to any legislator at any time under any circumstances. This is surely not within the legislative intent of the PRL.

“Defendant Fann has the authority, and statutory obligation under the PRL, to compel [Cyber Ninjas (CNI)] and its subvendors to produce all internal emails and correspondence outlined in the Proposed Order. Senate Defendants’ claim that they have not even seen the documents of CNI and its subvendors does nothing to advance their position. Willful blindness does not relieve Senate Defendants from their duties and obligations under the PRL.”

Later on Tuesday, through its attorneys, Coppersmith Brockleman PLC, American Oversight will be filing a motion asking the court to require the Arizona Senate to produce records by the specific date of Aug. 31, 2021.

“The state Senate’s insistence on shrouding their audit in secrecy is wrong and, as the court has now held twice, illegal,” said Austin Evers, American Oversight’s executive director. “The law does not allow them to outsource democracy to partisan operatives with impunity. We look forward to the Senate’s prompt compliance with the court order but stand ready to fight on if they continue to flout the law.”

American Oversight’s investigation has already uncovered hundreds of pages of documents that cast doubt on the credibility of the Arizona Senate’s “audit” of Maricopa County ballots. Those documents include emails sent by Arizona Senate President Karen Fann in December 2020 boasting that she had the support of then-President Donald Trump in “pushing to prove any fraud.” Read more of American Oversight’s initial findings and follow the investigation here.