Watchdog Organization Sues Arizona Senate Under Public Records Law
AZ BlueMeanie
Watchdog Organization Sues Arizona Senate Under Public Records Law
A nonpartisan watchdog organization, American Oversight, is suing for immediate access to all documents and materials related to the Arizona Senate’s sham “fraudit” of the 2020 election results.
From the American Oversight press release:
On Wednesday, American Oversight sued the Arizona Senate under Arizona’s public records law for failing to release documents related to the Senate’s partisan audit of the 2020 general election ballots cast in Maricopa County.
American Oversight is represented in the lawsuit, filed in Maricopa County Superior Court, by the law firm Coppersmith Brockelman, PLC.
In April, American Oversight launched an investigation of the state Senate’s partisan audit of the Maricopa County ballots. Following Arizona Senate President Karen Fann’s announcement that the audit team would be led by the firm Cyber Ninjas, American Oversight filed a suite of public records requests with the Senate for documents related to the audit..
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LINK > https://m.youtube.com/watch?v=86dzbXs-h4s&feature=emb_imp_woyt
- Communications between former Secretary of State Ken Bennett and any party engaged in planning or executing the audit;
The Senate produced only a few additional records in response to that request, and otherwise maintained its position that the remaining records are not in its possession and, therefore, are not public records.
. . .In the weeks since we opened our investigation, only a handful of records have been released and local and national reporting have raised significant questions about the audit’s integrity. . .
On May 4, the Senate notified American Oversight that there “are no more responsive documents to provide at this time because the Senate doesn’t have custody, control or possession of any of the records requested.” A week later, we submitted a supplemental request to confirm the Senate’s position, expressly seeking the following records:
The Senate produced only a few additional records in response to that request, and otherwise maintained its position that the remaining records are not in its possession and, therefore, are not public records.
MoreUnder Arizona’s Public Records Law, any public organization or agency “expending monies provided by [the] state,” is required to maintain records of their official activities. Given the Senate’s insistence that the audit is a “valid legislative purpose” — a view that was upheld by a judge when affirming the audit’s authority to issue subpoenas — the public has a right to any records related to the audit, including those in the possession of the Senate’s agents and contractors, including Cyber Ninjas.
Wednesday’s lawsuit asks a judge to enforce Arizona Public Records Law by compelling the Senate to promptly produce records responsive to American Oversight’s requests. Along with the entirety of American Oversight’s investigation, the litigation aims to provide the public with urgently needed transparency to determine whether the audit is intended to return legitimate results through a secure and honest process — or to serve specific political ends.
New legal papers filed Wednesday on behalf of American Oversight contend anything the Senate has acquired as part of its effort is subject to disclosure under the state’s Public Records Law.
> It’s legally irrelevant if some of the materials are now in the hands of Cyber Ninjas, the private firm hired by Senate President Karen Fann to conduct the audit, said the watchdog group’s attorney, Roopali Desai.
The only reason Cyber Ninjas got the materials in the first place was because they were demanded — in fact, subpoenaed — by the Senate, Desai said. Cyber Ninjas is acting under contract with the Senate.
“Officers and public bodies cannot avoid their responsibilities under the Public Records Law to keep, maintain, and produce public records by contracting key public functions (using public funds) to private contractors,” Desai wrote. “A contrary result would circumvent a citizen’s right of access to records and thwart the very purpose of the Public Records Law.”
Fann said late Wednesday she had just heard of the litigation, filed in Maricopa County Superior Court, and will review it with Senate attorneys before commenting.
> Fann already made public the contract documents between the Senate and Cyber Ninjas.
But the lawsuit says at least part of what is missing is any contracts involving third-party vendors that the Senate directly or indirectly retained through Cyber Ninjas.
Potentially more significant, Desai also wants any records reflecting the audit’s budget and any external funding that may have been received.
Fann has told Capitol Media Services the only thing she knows about is the $150,000 the Senate agreed to pay Cyber Ninjas for the work.
She acknowledged that there is probably money going directly to the contractor. Outside groups are soliciting donations with the aim of raising $2.8 million for the effort.
But Fann said those dollars are not coming through the Senate, though she said she expects a full accounting from Cyber Ninjas when the audit is over.
Desai said that’s not good enough. “The audit is a public function,” she said.
One way Desai thinks she can get at those numbers is by demanding the employment and payroll records of those hired by Cyber Ninjas. The presumption, she said, is that at least some amount of that money is coming from public sources — making it a public record.
“I don’t know how you can say with a straight face that’s somehow separate and apart from the audit,” Desai said. “But for the audit, you wouldn’t incur that expense, you wouldn’t enter into that employment agreement and you wouldn’t be obligated to pay that employee.”
Put another way, Desai said all of the work being done on the audit is directly linked to, and because of, a state function.
Fann effectively has conceded that.
In pursuing the audit, she said the purpose was not to overturn the election results that showed Joe Biden defeating Donald Trump.
Instead, Fann said, the whole idea is to examine how the balloting was handled, at least in Maricopa County, so senators can decide whether changes need to be made in laws governing the conduct of elections.
Desai said that makes everything the Senate is doing a matter of public record, regardless of whether it is reviewing the ballots and election equipment itself or has contracted it out to Cyber Ninjas.
She said the same is true for any communications sent or received by Ken Bennett, whom Fann named as the liaison between the Senate and Cyber Ninjas.
“Cyber Ninjas, Mr. Bennett and the subcontractors working on the audit are performing a public function on behalf of the Senate defendants,” Roopali wrote.
The law states that records are public if they are “reasonably necessary or appropriate to maintain an accurate knowledge of the official activities” of the Senate, she said.
American Oversight was launched in 2017 initially to track the activities of the Trump administration and look for potential fraud.
Austin Evers, the organization’s executive director, said at the time that it intended to use public records requests “to extract information about corruption, about how money’s being misspent, about how rules aren’t being followed, and publicize it so at a minimum, voters can hold their government accountable.”
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