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Appeals court: Senate, Cyber Ninjas must produce ‘audit’ records immediately

By: - August 19, 2021 1:46 pm

Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona Senate in an audit at the Veterans Memorial Coliseum in Phoenix on May 24, 2021. Photo by David Wallace | Arizona Republic / pool photo

The state Senate can’t duck Arizona’s public records law because some records were created by and are in possession of Cyber Ninjas, the company that GOP legislative leaders hired to conduct a so-called “audit” of the 2020 election in Maricopa County, the Arizona Court of Appeals ruled Thursday.

That means the Senate must immediately turn over a bevy of documents requested by American Oversight, a liberal watchdog organization. The group filed a public records request for internal communications between “audit” team employees and contractors, contracts between Cyber Ninjas and its various subcontractors, records showing who was paying for the “audit,” agreements with outside funders, and all invoices or other records showing payments to vendors and subcontractors.

The appellate ruling upholds an earlier decision by a trial court judge.

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The Senate had argued that the records aren’t covered by Arizona’s public records law since the Senate never had physical possession of them. But the three-judge panel unanimously rejected that position, writing that the Senate’s position would render the public records law meaningless.

“Allowing the legislature to disregard the clear mandate of the (public records law) would undermine the integrity of the legislative process and discourage transparency,” which would run counter to the purpose of Arizona’s public records law.

Because the Senate hired Cyber Ninjas, a cybersecurity firm with no experience in auditing or elections that is run by an election conspiracy theorist, to perform an “important legislative function,” the records the private firm creates in doing the Senate’s bidding have a “substantial nexus to governmental activity.” That makes them public records, the judges wrote.

“The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas,” they concluded.

The judges said they take the same stance as the North Dakota Supreme Court did in a 1986 case, when it ruled that records created by an independent contractor who was hired to screen candidates for public office couldn’t be withheld simply because a governmental function was farmed out to a private company.

An attorney for the Senate said today’s ruling will be appealed to the Arizona Supreme Court.

***UPDATED: This story has been updated to include additional information.

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Jim Small
Jim Small

Jim Small is a native Arizonan and has covered state government, policy and politics since 2004, with a focus on investigative and in-depth policy reporting, first as a reporter for the Arizona Capitol Times, then as editor of the paper and its prestigious sister publications, the Yellow Sheet Report and Arizona Legislative Report. Under his guidance, the Capitol Times won numerous state, regional and national awards for its accountability journalism and probing investigations into state government operations.

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