Judge: Senate must disclose who is funding its election review

By: - July 15, 2021 3:57 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

A judge said the Arizona Senate’s reasoning for why it rejected a public records request for documents relating to the ongoing ballot review — including who is funding the effort — would lead to the “absurd result” of effectively gutting state public records law and “erode any sense of transparency” in government.

Maricopa County Superior Court Judge Michael Kemp sharply criticized the Senate’s defense in a ruling Thursday rejecting the legislative chamber’s attempt to dismiss a lawsuit brought by American Oversight, a non-partisan ethics watchdog group based in Washington, D.C. 

American Oversight has filed numerous public records requests seeking information about the Senate’s ongoing review of the 2020 general election in Maricopa County. It has received thousands of pages of documents in response, including emails and text messages from top senators, including Senate President Karen Fann.

The documents sought in the disputed records request center on the planning, execution and funding of election review. The Senate rejected the request and said it didn’t possess the records in question — rather, they were created and held by Cyber Ninjas, the Florida-based computer security company tasked with reviewing the election, and the subcontractors it hired. That meant they were outside of the scope of Arizona’s public records law, the Senate claimed.

But Kemp wrote that he “completely rejects” the Senate’s claim that Cyber Ninjas isn’t subject to public records laws on documents it creates related to the work the Senate hired it to do. Kemp noted that the Senate acknowledges the company is acting as an agent of the Senate, hired as part of the Senate’s “exercise of its legislative constitutional powers” to perform “important and valid” legislative work.

“Allowing the Senate Defendants to circumvent the (public records law) by retaining private companies to perform valid legislative and/or constitutional functions would be an absurd result and undermine Arizona’s strong policy in favor of permitting access to records reflecting governmental activity,” Kemp wrote. 

“Such a result would set an unsound precedent, chilling future requests from the public to gain access to public records. It would also erode any sense of transparency for conduct on the part of government officials.”

Because Kemp was only ruling on the Senate’s attempt to get the lawsuit thrown out of court, it isn’t final. But he made clear that he believes all of the records American Oversight sought — documents and communications relating to planning and execution, policies, procedures and “all records disclosing specifically who is paying for and financing this legislative activity as well as precisely how much is being paid” — are public records and must be turned over.

And he directed the Senate to demand the records from Cyber Ninjas, noting that the contract to perform the election review requires it to “fully cooperate … by providing information or documents requested … that are reasonably necessary to the defense or settlement” of a lawsuit.

It is unclear if the Senate will appeal the ruling or take the case to trial, and a request for comment was not answered.

Kemp also rejected the Senate’s argument that it wasn’t subject to the public records law, noting that legislators created the law and have never sought to exempt themselves from it, as well as the Senate’s attempt to combine this case with one brought by The Arizona Republic, which is suing to obtain the results of the recount that Cyber Ninjas oversaw.

“It is difficult to conceive of a case with a more compelling public interest demanding public disclosure and public scrutiny,” Kemp wrote.

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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. He has also served as the editor and executive director of the Arizona Center for Investigative Reporting.