- Documents about the audit are public records because the audit is being held under Senate direction.
The Arizona Republic has gone to court to demand records from the state Senate and one of its contractors to shed light on the audit of 2020 election results, much of which has been kept from the public despite the importance of the ballot recount.
The news organization on Wednesday filed a special action in Maricopa County Superior Court seeking financial records and communications about the audit from the Senate and Cyber Ninjas, the contractor it hired to lead the work.
But for the most part, the state has kept information on how the audit is being conducted, the businesses doing the work, where the money is coming from and what officials are saying to each other about it away from the public.
The Republic had earlier requested the information through the Arizona Public Records Law but was denied access, prompting the legal complaint.
Documents related to the audit are public records because the audit is being conducted under the direction of the Senate, a public body, and the Senate is required to make available records that are in the custody or control of Cyber Ninjas, the complaint argues.
Cyber Ninjas “by virtue of its performing a core governmental function funded in part by state taxpayer dollars, was required to maintain these Public Records and make them available,” the complaint said. “Yet Cyber Ninjas has refused to do so.”
The Republic is seeking the records to provide the public with a better understanding of the unprecedented audit of the election, which involved the Senate issuing subpoenas to the Maricopa County Board of Supervisors and moving election equipment and about 2.1 million ballots to the Arizona Veterans Memorial Coliseum for inspection by private contractors. The audit has taken weeks and has yet to conclude.
“Arizona law entitles the public to know how this audit is being conducted and funded,” attorney David Bodney, who represents The Republic, said Wednesday after the action was filed in court. “And the Arizona public records law does not permit the Senate to play ‘hide the ball’ by delegating core responsibilities to a third party like Cyber Ninjas and concealing records of government activities and public expenditures in Cyber Ninjas’ files.”
Bodney questioned why the senators who ordered the audit would not want the documents for themselves, particularly those communications involving subcontractors to Cyber Ninjas, so they could understand the work being done in their name.
“The Senate asserts that it is not even required to ask Cyber Ninjas to share copies of its Arizona audit records with them, much less disclose them to the public,” Bodney said. “And Cyber Ninjas won’t produce copies of these public records, either. Their conduct leaves us no choice but to call upon the court to enforce the public records law.”
An attorney for the Senate did not respond to a request for comment Wednesday. But in a similar case seeking public records from Cyber Ninjas, attorneys for the Senate have argued in a court filing that such records need not be provided in a public records request.
“Private corporations that serve as vendors to the state government are not ‘public bodies,’ ” the senators said in a motion to dismiss a case brought by a nonprofit group called American Oversight, which formed in 2017 to investigate potential fraud in the Trump administration. “It follows that any documents in their possession, custody or control are outside the scope of the Arizona Public Records Act.”
The Republic’s complaint seeks to have a judge set a deadline for the Senate and Cyber Ninjas’ communications to be provided to the newspaper. It also asks for legal fees, arguing the records were unlawfully withheld from the news organization in violation of the state public records law.
Concerns over transparency
Senate President Karen Fann, R-Prescott, said from the outset the audit would be conducted through a transparent process, but the complaint disputes that characterization.
“That transparency has been lacking, however, as defendants have refused to provide public records responsive to (The Republic’s) requests that are in the custody or control of Cyber Ninjas,” the complaint states.
The Republic has sought public records since the audit began in April, and while some were provided, communications from Cyber Ninjas have not.
During a meeting May 27, Fann’s attorney Kory Langhofer and Norm Moore, the Senate’s former public records counsel, told representatives for The Republic that Fann and the Senate would not produce any records in the possession of Cyber Ninjas, arguing that they were not public records.
Also that day, The Republic issued an additional records request for all text messages, emails and other communications to and from Cyber Ninjas and other audit contractors and 27 individuals, including Ken Bennett, a former secretary of state serving as a liaison for the audit, audit spokesman Randy Pullen, Senate Judiciary Committee Chairman Warren Petersen and Fann, as well as individuals understood to be involved or supportive of the effort, including Sidney Powell, Patrick Byrne and former President Donald Trump.
The Republic sent an additional request to Cyber Ninjas on June 2 seeking financial records, including contracts, invoices, bills and donations as well as Cyber Ninjas’ audit-related communications with state senators, other politicians, Bennett, Pullen, Maricopa County elected officials and Christina Bobb of One America News Network.
An attorney for Cyber Ninjas responded that the company would not comply.
The complaint argues that Fann and Peterson have wrongfully denied The Republic access to records under the control of Cyber Ninjas.
“The Arizona Senate’s audit of Maricopa County ballots is a matter of the most urgent public concern,” the complaint states. “Nothing is more fundamental to our democracy than the administration of our elections. Defendants themselves have stressed the importance of public confidence in voting and elections as justifications for the audit, and have pledged transparency in performing the audit. But the public cannot properly evaluate the conduct of and findings of the audit without prompt and full access to the very public records that defendants are unlawfully withholding.”
The Republic asked the court for an order requiring defendants to show cause why the news organization should not be entitled to the records.
“This case involves crucial questions for our state: Can the Arizona Senate perform an audit of Maricopa County ballots it obtained under legislative subpoena without promptly and comprehensively releasing public records related to the audit?” The Republic’s request states.
It argues that the records in question are public documents regardless of who possesses them because of the special position the Senate has given Cyber Ninjas.
“Can Arizona politicians unfurl a veil of secrecy over their review of the election that put them in office by hiring outside contractors to perform it?” it states. “And can a company hired and paid by the government to perform an essential and uniquely governmental function hide behind the fiction that it is not subject to the Arizona law that allows the public to know what it is doing, how it is doing it and who it hired to do the work?”
Operations ‘carried out largely in secret’
Greg Burton, Republic executive editor, said the news organization is taking action because the audit is directed by a group of partisans from the Senate who themselves were on the ballots.
“Despite promises by Senate leaders that its vote audit would be transparent, the operations of the recount have been carried out largely in secret by hired, not elected, parties performing the functions of elected officials,” Burton said in a court declaration.
Just as the public has a right to government documents to help discern whether elected officials are acting in the public’s interest, so does the public have a right to documents from contractors like Cyber Ninjas acting on behalf of the government, especially on such an important matter, he said.
“The lack of information makes it difficult to discern the quality of this recount,” Burton said. “It will make it impossible to weigh the credibility of the work once results are announced. Information from participants, particularly Cyber Ninjas, is essential to help the public understand, let alone challenge, the process.”
The Republic’s action is separate from another action from American Oversight, which is seeking similar records from Fann and Petersen.
American Oversight filed a lawsuit in May after the Senate declined to turn over records after they were requested through the state public records law.
That case names Fann, Petersen and the Senate at large as defendants.
The documents American Oversight requested include communications and financial records from Cyber Ninjas and its various subcontractors and Bennett “or any other individual or entity engaged in work on the audit.”
Reach reporter Ryan Randazzo at email@example.com or 602-444-4331. Follow him on Twitter @UtilityReporter.