An Arizona judge on Wednesday asked an attorney for the state Senate why the public should not have access to records involving Cyber Ninjas, the tech firm reviewing the 2020 Maricopa County presidential election.
“Isn’t the public entitled to know who is paying for this, what (Senate) President (Karen) Fann referred to as a constitutional and legislative function, this important constitutional duty?” Maricopa County Superior Court Judge Michael Kemp asked the lawyer for the Senate.
The question came during a hearing in a lawsuit filed by a nonprofit group called American Oversight. The suit was filed after the Senate declined to turn over records requested through the Arizona Public Records Law.
An attorney for the Senate responded that the documents are not covered under that law.
The lawsuit names Sen. Fann, R-Prescott, Sen. Warren Petersen, R-Gilbert, and the Senate at large as defendants.
In January, the Arizona Senate issued subpoenas demanding Maricopa County turn over all 2.1 million ballots cast in the county’s November election, digital images of the ballots, all voting machines, the voter log and other election information.
Cyber Ninjas and multiple subcontractors have examined the material at Veterans Memorial Coliseum for several weeks.
American Oversight requested a host of documents created by the audit, including communications and financial records from Cyber Ninjas and its various subcontractors; from Ken Bennett, a former secretary of state serving as a liaison for the audit; “or any other individual or entity engaged in work on the audit.”
The suit cites the Arizona Public Records Law, which states that government officials must maintain records “necessary or appropriate to maintain an accurate knowledge of their official activities, and of any of their activities which are supported by monies from this state.”
Dispute over what is private versus public
The Senate has argued in court filings that it will turn over records from the Senate it considers public, but would not request or provide documents held by Cyber Ninjas.
“The crux of this dispute is discrete and straightforward: private corporations that serve as vendors to the state government are not ‘public bodies’ within the meaning of (Arizona law),” Senate attorneys wrote in a court filing. “It follows that any documents in their possession, custody or control are outside the scope of the Arizona Public Records Act.”
Kemp questioned that argument, citing the legal presumption that government records are public and should be open.
“This is a compelling public interest,” Kemp told Kory Langhofer, the attorney representing the Senate. “The burden is really on you to show why you don’t have to turn these over. Is it simply because they are not in your physical possession? Do you have any other arguments besides that?”
Langhofer said that the defendants have turned over 1,200 pages of documents so far and are planning to release 15,000 more documents.
He said that questions of what the Senate is paying and how the audit is conducted would be answered by the records the Senate plans to produce in its online reading room.
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“There is no constitutional right to acquire government records,” Langhofer said, adding that the Senate believes the documents sought don’t fall under the state public records law.
The Senate agreed to pay just $150,000 of the audit expenses, though that amount is likely to cover just a fraction of the costs of renting out Veterans Memorial Coliseum for weeks on end, providing security and purchasing the various equipment used in the effort.
Keith Beauchamp, an attorney for American Oversight, said that allowing the Senate to withhold the communications because Cyber Ninjas possesses them would create a problem for public access to such documents in the future.
“Otherwise the public records statute will have a gigantic loophole in it that agencies can drive a truck through that will shield them from permitting the public to know what the government is up to,” he said. “No matter which side of the political aisle you are on, that is a bad thing.”
Langhofer said the public interest in knowing what is going on with the audit does not automatically mean the records are public.
“They (the plaintiffs) certainly make policy arguments about why the public should be able to know things that currently only a private contractor knows,” Langhofer said. “That is a great political argument. They should talk to the Legislature about that. They should amend the public records act if they want to compel that sort of information.”
The Senate has argued the case should be dismissed, and Kemp said he would decide on that within seven to 10 days.
The Republic has filed separate lawsuit
The Arizona Republic has filed its own, similar case seeking records, which the Senate and Fann have refused to provide to the newspaper.
The news organization filed a special action in Maricopa County Superior Court seeking financial records and communications about the audit from the Senate and Cyber Ninjas.
Documents related to the audit are public records because the audit is happening under the direction of the Senate, a public body, and the Senate is required to make available records that are in the custody or control of Cyber Ninjas, The Republic’s complaint argues.
The lawyers for the Senate have moved to consolidate the two cases. They argued this was appropriate in part because the Senate is using the same legal defense in each case and should not be subject to the expense of fighting two lawsuits.
The Republic and American Oversight both oppose consolidating the cases.
“Deciding one does not necessarily resolve the other,” The Republic said in a court filing opposing consolidation.
The Republic and American Oversight said consolidating could delay the case because the two parties have unique legal arguments regarding why the documents are public records.
“This litigation is well underway, and as (American Oversight) has explained … prompt resolution of the matter is critical to inform the public on a matter of widespread and pressing public concern,” American Oversight wrote in court filings.
Another difference in the cases is that The Republic has named Cyber Ninjas and Susan Aceves, the secretary of the Arizona Senate, as defendants, while American Oversight has not.
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