Cyber Ninjas, flouting court order, refuse to turn over public records to the Senate

Cyber Ninjas won’t hand over all of the documents that Senate President Karen Fann requested from the review it conducted of the 2020 election in Maricopa County, despite an order by the Arizona Court of Appeals that all such records be made public.

Attorney Jack Wilenchik, who represents the Florida-based company that led the election review that Fann ordered, argued to the Senate’s lawyer that the staffing records and internal communications are not public records, and said Cyber Ninjas will not turn them over as the Senate president requested. 

The company will provide “full financial statements” about the audit, either as part of the report that will become public on Sept. 24, or shortly thereafter, Wilenchik wrote in an email to Senate attorney Kory Langhofer on Friday. And it will provide its communications with the Senate, which have not been made public, and any updated policies and procedures its subcontractors have used during the audit.

But staffing records, as well as internal communications and communications with subcontractors, are private records, Wilenchik wrote. For example, Wilenchik said it would not be “practical, workable, fair or legal” for the company to be forced to turn over internal company emails about staffing and Cyber Ninjas’ performance of its contract with the Senate.

“If the case were otherwise, then it would set an extremely unsettling precedent for all government contractors in this state and make it impossible for the State to do business,” Wilenchik wrote.

Furthermore, Wilenchik said Fann’s request for all records that have “a substantial nexus to the audit” — a phrase that the Arizona Court of Appeals used to describe documents that the Senate must obtain and publicly release under the state’s public records law — is vague and difficult to define. 

Fann’s request for “all records that are reasonably necessary or appropriate to maintain an accurate knowledge” of the audit is also undefined, Wilenchik wrote, but Cyber Ninjas believes the Senate already has all the records it needs. He noted that the Senate had multiple liaisons who observed audit operations on a daily basis, and that election review activities were live-streamed on the internet at all times.

“I also emphasize that, while CNI intends to produce documents out of goodwill and its commitment to transparency, by sending this communication CNI does not concede the existence or scope of any involuntary legal obligation to do so,” Wilenchik wrote in the email, referring to Cyber Ninjas, Inc.

Cyber Ninjas likely won’t have the final say on whether its obligation to turn over records is involuntary. The Court of Appeals ruled that the Senate must acquire and make public all documents with a “substantial nexus” to the audit, regardless of whether those documents are held exclusively by private contractors. The contract that Cyber Ninjas signed with Fann in March requires the company to provide “information or documents” she requests for the purpose of settling legal claims.

Roopali Desai, an attorney representing American Oversight, the liberal nonprofit group that sued the Senate over the records, said it’s the Senate’s responsibility to obtain the documents from Cyber Ninjas.

“Our view is that the defendant in our case is the Senate. They are responsible for their contractors and subcontractors. They can and should and must get these documents. The public records law requires it. They have independent subpoena power. They have contractual rights. There’s lots of different ways that they can hold their subcontractors accountable,” Desai told the Arizona Mirror. 

If Cyber Ninjas wants to continue the fight in court, it appears the company will be on its own and won’t have any assistance from the Senate, which led the legal battle against American Oversight for months.

In a letter to Wilenchik on Friday, Langhofer said Cyber Ninjas’ refusal to turn over some records jeopardizes the Senate’s ability to comply with the Court of Appeals order, and any decision by the company not to comply with Fann’s request for documents would be “prejudicial to the legal interests of the Senate and its officers.” 

“The Senate will not support or advance any legal claim, defense, or position espoused by CNI that has the effect of limiting or delaying CNI’s compliance with the Senate’s September 14 request,” Langhofer told Wilenchik.

Langhofer informed the judges in public records lawsuits brought by both American Oversight and the parent company of The Arizona Republic that “(t)he interests of the Senate and Cyber Ninjas have diverged on this issue.”

Cyber Ninjas has produced four documents so far in response to the Senate’s request, Langhofer said. Those records pertain to training, policies for counting ballots, tally sheets and documents detailing the chain-of-custody for those sheets.

Wilenchik also indicated that the documents Cyber Ninjas is willing to turn over could be delayed by Logan’s work on the long-delayed audit report, which he will present to the Senate on Sept. 24. 

Fann requested a cache of documents from Cyber Ninjas after the Arizona Supreme Court refused to accept her appeal of the appellate court ruling that documents in the possession of contractors hired to perform a review of the 2020 general election in Maricopa County 

The Senate’s fight over public records isn’t over either. The Senate has turned over tens of thousands of pages of documents in response to American Oversight’s lawsuit, but has withheld several thousand pages on grounds of legislative privilege. Desai filed a motion on Friday asking Maricopa County Superior Court Judge Michael Kemp to order the release of those documents.