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Arizona 'audit' contractors won’t have to release records pending appeal

The companies conducting the controversial review of the election in Maricopa County won’t have to turn over internal documents and communications while the Senate appeals a judge’s ruling ordering that they be released under Arizona public records law.

A Maricopa County judge ruled last week that the state Senate must turn over documents such as internal communications, payment records, agreements with outside funders from the self-styled audit that Senate President Karen Fann ordered of the 2020 general election in Maricopa County. The Arizona Court of Appeals, however, will allow the Senate and Cyber Ninjas, the Florida company that Fann hired to lead the audit team, to withhold those records — for now.

The Court of Appeals will hear arguments in the case on Aug. 16.

Kory Langhofer, an attorney representing the Senate, said the ruling wasn’t surprising.

“The case raises sensitive constitutional issues, so it is appropriate for the court to preserve the status quo pending appellate review,” he told the Arizona Mirror.

American Oversight, a left-leaning nonprofit organization, sued the Senate for reams of communications and other records pertaining to the election review. The Senate turned over some, such as emails Fann had exchanged with audit contractors and members of the public. But the Senate argued that other records weren’t public records because they weren’t in its possession.

Superior Court Judge Michael Kemp ruled that the documents are still public records, regardless of whether they’re possessed by Cyber Ninjas or other subcontractors — even if they’ve never touched Senate hands — because they have a “substantial nexus” with official Senate business. 

Kemp also rejected the Senate’s argument that the documents are protected by the Arizona Constitution’s legislative immunity provision, which shields lawmakers who are conducting official duties from liability. The judge said that provision applies only to “words spoken in debate” and official legislative acts.

This report was first published by the Arizona Mirror.


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