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The Senate can use legislative privilege to shield some ‘audit’ records: Arizona Supreme Court

By: - August 31, 2022 2:44 pm
Arizona audit

Photo by Courtney Pedroza | Getty Images/pool photo

If the Arizona Senate provides more detailed explanations for why it says some records related to the partisan election review it conducted in 2021 are privileged and can’t be made public, those records should remain secret, the Arizona Supreme Court ruled Wednesday.

In a long-running legal battle over records related to the so-called “audit” of the 2020 election in Maricopa County, the Senate has argued that roughly 1,000 records are entirely or partially covered by legislative privilege, meaning they aren’t subject to disclosure under Arizona’s public records law. 

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An appellate court ruled that, while some of the records were plainly covered by the privilege, it was unclear whether the privilege should apply to others. So the court ordered the Senate to give the records over to a trial judge so he could examine them in private and determine if they should be made public or remain hidden. 

But in doing so, the appellate court “overlooked a critical component” of the case law that guides when legislative privilege applies, the Supreme Court said. In addition to matters that deal directly with legislation — either existing or being considered — the privilege exemption also applies to “other matters placed within the jurisdiction of the legislature,” the justices ruled.

“We hold that the Senate engaged in a privileged legislative act when it exercised its statutory and constitutional authority to investigate the 2020 general election,” Justice John Lopez wrote in the unanimous ruling.

Even if there were no laws that were ever proposed as a result of the so-called “audit,” the privilege exists, Lopez wrote: “The legislative authority to investigate in contemplation of potential legislation concerning voter registration, election procedures, and election integrity, itself, is protected by legislative privilege.”

Further, the privilege isn’t wiped away if the entire “audit” was motivated solely by politics — critics have said the endeavor was aimed at bolstering Donald Trump’s lies about the election — as long as it was something the legislature had authority to do.

“We consider actions, not motives,” Lopez wrote. “Our analysis rests on the legislative nature of, rather than the motive for, the Senate’s Audit.”

That doesn’t mean all of the records are privileged, however. For instance, Lopez noted that legislative privilege doesn’t extend to “administrative or political” communications, including “payment, employment of consultants and the like.” Likewise, communications about “public reaction” to the election review or “what information should be released to the public” are political in nature and must be released.

Senate President Karen Fann praised the ruling.

“This is a huge victory for the protection of the legislative process. This decision finally recognizes the broad application of legislative privilege and restores procedural sanity after the lower courts’ casual dismissal of the Senate’s claims of legislative privilege,” she said in a written statement. “We absolutely believe in transparency, however, there are times when legislative privilege should be exercised so that we can do the jobs that the people of Arizona elected us to carry out.”

American Oversight, the liberal government watchdog group that sought the records and sued the Senate for their release, said the ruling was “misguided.”

“This ruling makes it easier for officials to hide the truth about their motives and conduct from the public,” said Heather Sawyer, American Oversight’s executive director.

It remains to be seen how many of the 1,000 or so documents the Senate says should remain private will be covered by the privilege. The Supreme Court said the Senate’s earlier description of documents withheld were too vague and didn’t allow the court or American Oversight to truly assess whether the records were privileged.

“Greater detail is required to mitigate the risk that the vague descriptions in privilege logs could defeat transparency in government activities as required by law,” Lopez wrote. 

So the court ordered the Senate to “include specific assertions explaining why the document is purportedly privileged.” If the Senate does so and the descriptions “adequately delineate legislative acts,” then the trial court judge cannot view the records in private to determine if they are privileged. If the Senate doesn’t update its privilege logs, or doesn’t meet the standard set by the Supreme Court, then the judge can examine the records privately.

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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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