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‘Audit’ documents are public records: Arizona Supreme Court declines Fann’s appeal

By: - September 14, 2021 4:24 pm

An observer watches as contractors working for Cyber Ninjas, who was hired by the Arizona State Senate, examine and recount ballots from the 2020 general election at Veterans Memorial Coliseum on May 8, 2021. Photo by Courtney Pedroza | The Washington Post/pool

Communications between subcontractors, invoices and a host of other records related to the state Senate’s self-styled audit of the 2020 election in Maricopa County must be released as public records after the Arizona Supreme Court declined to hear Senate President Karen Fann’s appeal of an appellate court ruling. 

The Arizona Court of Appeals ruled last month that documents requested by the liberal watchdog group American Oversight are public records, regardless of whether the Senate has possession of them, upholding a lower court ruling. Fann, R-Prescott, appealed, but the Supreme Court on Tuesday denied her petition to review the Court of Appeals’ decision.

That means the Senate, along with Cyber Ninjas and other subcontractors, must release a cache of records that could shine extensive light on the inner workings of the review that Fann ordered of the election. American Oversight sought communications between audit contractors and employees, records detailing who funded the review and what payments were made, any agreements with outside funders, and other records.

“Arizona law does not allow public servants to outsource democracy and shroud their conduct in secrecy. The Arizona Senate’s legal maneuvering to conceal these records from the public matches the outrageousness of their so-called audit. That ends today,” Austin Evers, American Oversight’s executive director, said in a statement the organization tweeted Tuesday afternoon.

Fann and her attorneys had argued that those documents don’t qualify as public records because they aren’t in the Senate’s possession and are held by Cyber Ninjas and other outside subcontractors. The Senate denied American Oversight’s request, as well as public records requests submitted by the Arizona Mirror and other media outlets. 

But Maricopa County Superior Court Judge Michael Kemp, as well as the Arizona Court of Appeals, said it’s irrelevant who holds physical possession of those records. The records have a “substantial nexus” with a government activity — in this case, the Senate-sponsored review of the election results — and the Senate has “at least constructive possession” of the documents.

In denying the Senate’s appeal, the Supreme Court rejected the Senate’s argument that lawmakers and legislative bodies are not bound by Arizona’s public records law and allowed that appellate court ruling to stand. The court also ended a stay of the Court of Appeals’ ruling that allowed the Senate to continue refusing American Oversight’s records request while Fann appealed.

Fann said she’ll confer with her attorneys to determine the best way to comply with the rulings.

“What concerns me more is the fact that this ruling could open up a whole new precedent of two private companies having to divulge private communications to anyone that asks under a (public records) request,” Fann said, echoing concerns that her attorneys made in court that a ruling in American Oversight’s favor could require private companies that do business with the government to turn over confidential information.

Fann has released thousands of pages of other audit-related records to American Oversight, including emails and text messages from senators and the Senate’s liaisons to the audit.

The previously withheld records that the Senate will have to release due to the Supreme Court’s decision may provide extensive information about the inner workings of the audit. 

For example, Cyber Ninjas CEO Doug Logan, who heads up the audit team, has long refused to say whether he has contracts or agreements with outside groups that provided the bulk of the funding for the election review. After months of refusing to disclose who those funders were, Logan disclosed in July that several groups that have promoted false claims that the 2020 election was rigged against Donald Trump, and in some cases participated in the former president’s attempts to overturn election results, provided nearly $5.7 million in funding. 

Logan has also refused to say how that money is being spent, who has been hired as contractors and how much individual subcontractors have been paid.

The high court’s decision comes as the audit team prepares to submit its long-delayed draft report to the Senate for review. Audit spokesman Randy Pullen said last week that the team plans to submit its report on Wednesday or Thursday.

Phoenix Newspapers, Inc., the parent company of The Arizona Republic, has filed a separate lawsuit against the Senate regarding audit records.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”