On Tuesday, the Arizona Supreme Court heard oral arguments in an appeal of lower court rulings that had found the state Senate must release more than 1,100 records related to the discredited election “audit” of Maricopa County — records American Oversight sued for a year ago.
At issue is the Senate’s claim that legislative privilege — the exemption that can, in certain cases, be applied to shield lawmakers’ discussions about proposed legislation from the public eye — allows it to withhold broad categories of “audit”-related documents from release. The court’s decision could have far-reaching implications for Arizona’s public records law and the ability to hold the state legislature accountable.
Both the Maricopa County Superior Court and the Arizona Court of Appeals ruled in favor of American Oversight’s position that the Senate’s application of legislative privilege — which for reasons of public interest is typically interpreted in a narrow manner — is overly broad. American Oversight argued that the privilege does not apply to the administrative review of votes cast in Maricopa County and that because the purpose of the “audit” was to recount ballots, not to inform legislation, releasing records would not impair the legislative process.
Maricopa County Superior Court first rejected the Senate’s blanket claim of legislative privilege in October 2021. In January, the Arizona Court of Appeals also rejected the Senate’s overly broad claim and said that the Senate must produce withheld documents or provide specific explanations for why each record should be withheld.
The unreleased records include communications between Senate President Karen Fann and Phil Waldron, the retired Army colonel who was active in efforts to overturn the 2020 election. Also redacted are messages between Fann and Doug Logan — the former CEO of Cyber Ninjas, the inexperienced firm hired by the Senate to conduct the “audit” — that were sent as early as Feb. 5, 2021, when the election review was first getting off the ground. The privilege log also lists the numerous Trump allies and election-denying activists, identified as “audit personnel” or “consultants” with whom the Senate communicated.
The Senate continues to withhold those records from the public, but American Oversight’s lawsuit led to the release of tens of thousands of pages of other documents that provided information about the effort’s partisan and conspiracy-rooted origins and further exposed the sham investigation as an anti-democratic tactic meant to undermine the 2020 election results.
American Oversight’s efforts to obtain “audit” records in the possession of not only the Senate but also Cyber Ninjas continue in trial court, where multiple rulings have determined that the contractor’s records are public records subject to release as well. In September, the state Supreme Court declined to hear the Senate’s appeal of those rulings, effectively upholding them. All court filings related to the case can be found here.
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