Judge Upholds Aug. 31 Deadline for Arizona Senate to Produce Election ‘Audit’ Records

On Wednesday, an Arizona judge ordered the state Senate — for the second time — to release by Aug. 31 records in  its possession related to its partisan election “audit.”

American Oversight first sued the Senate in May for records, including communications and contracts with outside vendors of the “audit”. While the Senate has in recent months stated that it was reviewing thousands of pages of documents for release, it has only produced a few hundred pages and this month asked the Arizona Court of Appeals for an emergency stay of the entire case. Meanwhile, audit contractors are this week preparing a final report for the Senate on their findings.

Earlier this month, Maricopa County Superior Court Judge Michael Kemp ordered the Senate to “immediately” begin producing records, having previously said, in rejecting the Senate’s motion to dismiss American Oversight’s lawsuit for records, that it was “difficult to conceive of a case with a more compelling public interest demanding public disclosure and public scrutiny.” 

After the Superior Court denied the Senate’s request that the case and its obligation to comply with the order be put on hold, the Senate turned to the Arizona Court of Appeals, asking that court for an emergency stay of the Aug. 31 production deadline and of the entire case. The appeals court granted only a limited stay of the order, allowing the Superior Court to maintain jurisdiction over documents in the Senate’s possession while the appeals court considers the release of records currently held by outside parties such as Cyber Ninjas, the lead contractor for the “audit.”

Wednesday’s Superior Court order only concerns records in the Senate’s possession. American Oversight has a hearing on Wednesday afternoon in the Court of Appeals to address the release of records in the custody of Cyber Ninjas and other outside parties; this page will be updated following that hearing.

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 physical possession of the Senate’s agents and contractors, such as Cyber Ninjas.