• June 4, 2023

Appeals court orders Arizona Senate to produce 2020 election audit records

 Appeals court orders Arizona Senate to produce 2020 election audit records

by  Jeremy Beaman   

The Arizona Court of Appeals upheld a lower court decision on Thursday requiring the state’s Republican-led Senate to produce records related to its audit of the 2020 election .

A three-judge panel unanimously rejected a petition brought by the state Senate that argued it has immunity from the legal action and that it doesn’t have many of the sought records in its possession.

Maricopa County Superior Court Judge Michael Kemp ordered the Senate on Aug. 2 to “immediately” deliver documents, invoices, and other records associated with the audit to liberal watchdog group American Oversight, which filed multiple requests under Arizona’s Public Records Law after taking the legislative body to court arguing its document disclosure was unsatisfactory.

The Arizona Senate’s attorneys argued over the course of the lawsuit that such documents are not subject to public disclosure rules because they are in the possession of Cyber Ninjas, a private company the chamber hired to conduct the audit on its behalf, and other subcontractors. That argument was summarily rejected by Kemp.


“Defendant [Arizona Senate President Karen] Fann has the authority, and the statutory obligation, under the [Public Records Law], to compel [Cyber Ninjas] and its subvendors to produce all internal emails and correspondence outlined in the proposed order,” Kemp wrote in his Aug. 2 order.

Fann told the Washington Examiner after Kemp’s ruling the chamber had “already complied with the FOIA requests as required by law between government and entities we do business with.” The appeals court ruling noted the Senate had produced nearly 1,000 pages of documents to American Oversight.

Fann said the Senate “cannot produce documents we do not nor ever had possession of,” however.

The appeals court also took up and rejected the same argument from the Senate in its Thursday ruling.

“There is no dispute that the audit is being conducted with public funds, and that Cyber Ninjas and its sub-vendors are agents of the Senate,” the judges wrote . “In this case the Senate has argued no exemption that, if properly recognized, would shield itself from the responsibility to inform the public of activities regarding the audit.”

“Nothing in the plain text of the [Public Records Law] suggests that physical possession of the public records by the Senate is required,” the judges also said. “The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”

“We find no error with the superior court’s determination that the requested documents are public records that must be disclosed,” the court concluded.

The Washington Examiner reached out to Fann for comment on Thursday’s ruling. According to the Arizona Mirror, the Senate intends to appeal to the Arizona Supreme Court.


American Oversight’s suit is not the only one leveled against the Arizona Senate. The Phoenix-based Arizona Republic newspaper sued the chamber and Cyber Ninjas on June 30, demanding access to a host of audit records under the same public records law.

Top Arizona Senate Republicans, including Fann, recently issued fresh subpoenas to Maricopa County officials and Dominion Voting Systems for materials the audit team said were needed to finish a report, including router access and network logins for ballot tabulation devices, among other things. After both parties signaled defiance to most of the demands, Arizona Senate Majority Whip Sonny Borrelli filed a complaint this month. Additionally, Arizona Attorney General Mark Brnovich opened an investigation  into whether Maricopa County broke the law by refusing to comply.

The monthslong controversial audit, which Democratic Secretary of State Katie Hobbs dubbed a “political stunt ,” appears to be nearing a resolution, with Fann saying on Monday the Senate’s audit companies are preparing a report on their findings. An audit spokesperson said they expect to deliver the main report to the Senate by Monday, according to local KNXV reporter Garrett Archer.


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