Judge rejects Senate’s immunity claim, orders release of ‘audit’ records

A Maricopa County judge ordered the Arizona Senate to immediately turn over records related to the ongoing review of the 2020 election, which Senate President Karen Fann will appeal.

The order follows Superior Court Judge Michael Kemp’s recent finding that a bevy of documents requested by the liberal nonprofit organization American Oversight are public records, regardless of whether the Senate has ever actually had physical possession of them. The Senate argued that documents held by audit contractors aren’t public records, which Kemp adamantly rejected. 

Judge: Senate must disclose who is funding its election review

Kemp reiterated his rejection of that claim on Tuesday, writing that it doesn’t matter whether Fann, Senate Judiciary Committee Chairman Warren Petersen or others in the Senate have never even seen the documents, as they claim. If the Senate does not possess the records, Kemp said state public records law obligates her to demand them from Cyber Ninjas, the company she hired to lead the self-styled audit, and its subcontractors. 

“Willful blindness does not relieve Senate Defendants from their duties and obligations under the (public records law),” Kemp wrote on Monday.

American Oversight filed suit in May after Fann denied the group’s requests for a number of records, including 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.

Cyber Ninjas has since released a list of outside groups that have funded the audit, revealing that $5.7 million came from a collection of organizations supportive of former President Donald Trump that have promoted false claims that the election was rigged against him and, in some cases, participated in efforts to overturn election results in states won by President Joe Biden. 

Who are the groups who paid to ‘audit’ the Arizona election?

Following Kemp’s ruling in July, in which he rejected the Senate’s request to dismiss the case, the Senate’s legal counsel said they would appeal any order mandating that Fann hand over the records to American Oversight. Attorney Kory Langhofer, who represents the Senate, said on Tuesday that Fann will appeal the ruling.

Langhofer said the appeal will focus on two arguments: that state law requires a document to be in the physical custody of a public body for it to be considered a public record, and that the Senate is shielded from the request by a provision of the Arizona Constitution providing immunity to legislative officers performing official duties.

Kemp rejected both arguments in his rulings on the matter.

In his July ruling, Kemp ruled that because the audit is a legislative function, “all documents with a substantial nexus to the audit activities are public records,” regardless of whether the Senate possesses them. And he said legislative immunity under the Arizona Constitution applies only to “words spoken in debate,” and shields them from personal liability for official legislative acts.

The Senate’s interpretation of legislative immunity would render Arizona public records law “meaningless and unenforceable as to any legislator at any time under any circumstances,” Kemp wrote in his ruling Monday.