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Arizona Senate must turn over Cyber Ninjas records related to election audit, appeals court says

August 23, 2021

The Arizona Court of Appeals ruled on Thursday, August 19, that the state Senate must turn over records from the contractor hired to conduct the review of Maricopa County’s 2020 election, AZ Central reports.

It’s the second consecutive day that a court has ruled against the Arizona Senate in its fight over records related to the audit, including email and other communications.

The Court of Appeals said in a Thursday order that documents from Cyber Ninjas, the lead contractor on the audit, are public records. A Superior Court judge already ruled the same way, but the Senate appealed the decision.

State Senate President Karen Fann (R-Prescott), said she would appeal this decision, too.

The Senate has argued that it will turn over records in its possession; but does not need to provide records held by Cyber Ninjas, because they are not covered by the Arizona Public Records Law. The courts have disagreed.

“The Senate defendants, as officers and a public body under the (records law), have a duty to maintain and produce public records related to their official duties,” the Appeals Court judges wrote in Thursday’s decision.

“This includes the public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate’s agents. … The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”

Fann said Thursday the Senate will appeal the decision to the Arizona Supreme Court because she thinks it sets a bad precedent to have emails between a state contractor like Cyber Ninjas and its subcontractors subject to the Public Records Law.

“If this were to win, anybody that does business with a municipality, they would be subject to open records requests,” Fann said. “I have never asked (Cyber Ninjas) for (the records). They are private between a private company and their clients.”

She said the Senate can’t provide communications between Cyber Ninjas and subcontractors because the Senate has never had possession of those documents.

“We are not trying to hide anything at all,” Fann said. “We have nothing to hide.”

The court’s decision upholds a ruling of a lower court that said the records are public, and the judges did not set a date by which the Senate needs to provide them.

On Wednesday, Superior Court Judge Michael Kemp ordered the Senate to turn over audit-related records that are in its possession by August 31.

The lawsuit was brought by American Oversight, a nonprofit group founded in part by former Obama administration officials to investigate the Trump Administration. The group first requested, then sued for, a variety of records, including communications between the Senate and Cyber Ninjas.

Research contact: @azcentral