Arizona Senate can't claim legislative privilege for 2020 election audit records, judge rules

The Arizona Senate can’t claim legislative privilege to avoid releasing a wide variety of records from the review of the 2020 vote count conducted on behalf of Republican leaders, a judge ruled Tuesday.

Meanwhile, a lawyer for Cyber Ninjas, the firm hired to lead the Senate GOP’s unprecedented election review, said the company is insolvent and can’t afford to pay attorneys to help it comply with court orders to release public documents.

The Senate and Cyber Ninjas have been battling for months over two public records lawsuits, one each filed by the parent of The Arizona Republic and American Oversight, a government watchdog group.

Maricopa County Superior Court Judge John Hannah took a step toward resolving a key issue when he carved out a narrow view of legislative privilege in the case filed by Phoenix Newspapers Inc., the publisher of the Republic. Hannah said the Senate may be able to keep secret only the communications of lawmakers discussing legislation, but talk of the Senate’s so-called "forensic audit" that don’t relate to the public policy implications is not privileged.

He put his ruling on hold to give the Court of Appeals and potentially the Arizona Supreme Court time to review the boundaries of legislative privilege. The Court of Appeals has scheduled a hearing Wednesday on that question in the American Oversight case.

The Senate argues that lawmakers can’t engage in free-wheeling debate about public policy if they’re worried their emails and text messages will later become public.

But Hannah said the Senate can’t plausibly claim a need for secrecy given the amount of information that the Senate has already made public about the ballot review. He said the Senate waived any privilege claim they might have, citing a livestream, access for media, public discussions by Senate representatives and multiple public hearings during and after the review.

"This is not a confidential process," Hannah said. "This is a highly, highly public process."

He said the audit was not just about crafting public policy but also about politics, and legislative privilege doesn’t apply to politics.

Hannah also ordered Cyber Ninjas, the firm Senate President Karen Fann hired to lead the Senate’s review, to immediately produce a log of records it claims don’t have to be released because they don’t have a "substantial nexus" to the audit.

Cyber Ninjas has argued for months that it is not subject to the public records law because it is a private company, but Hannah and other judges have repeatedly rejected that claim. They say the firm was hired to perform a core government function.

Jack Wilenchik, a lawyer for Cyber Ninjas, said the firm has no money and can’t afford to pay for the review or redaction of records.

"Who’s paying for that?" Wilenchik said. "Because the plaintiff is not, the Senate is not, and this company is insolvent."

Cyber Ninjas has released some documents but maintains it is doing so voluntarily. Among them is a financial statement suggesting the ballot review cost nearly $9 million. Cyber Ninjas received $5.7 million from political groups led by Donald Trump allies who have aggressively promoted the former president’s false claims that the election was stolen from him, along with $1 million paid by donors directly to subcontractors. Altogether, Cyber Ninjas reported a net loss of more than $2 million from the audit.

Hannah said Cyber Ninjas can give its records to the Senate for review and release if it doesn’t want to review them on its own.

Continued Coverage

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