AZ Judge rules communication between Cyber Ninjas and Senate R's is public record

A Maricopa County Superior Court Judge on Thursday ruled that communications between Senate Republicans, the company called Cyber Ninjas and other vendors they hired to audit Maricopa County's 2020 election are public documents.

Judge Michael Kemp said "any and all" records with a "substantial nexus" to the audit are public records, including all communications related to planning the audit, policies and procedures of the audit and all records disclosing who is paying for the audit and how much is being paid.

The nonprofit group American Oversight sued Senate President Karen Fann, R-Prescott, and the Senate, seeking communications with the companies regarding what the senators call a "forensic audit" of the election that Donald Trump lost to Joe Biden. The Senate asked for the case to be dismissed, but Kemp refused.

American Oversight was formed to investigate the Trump administration, and its founders have Democratic ties.

“It is difficult to conceive of a case with a more compelling public interest demanding public disclosure and public scrutiny,” Kemp said in his order.

The Senate Republicans argued that because some of the requested records are held by Cyber Ninjas and other contractors, they are not subject to the Arizona Public Records Law. Kemp called that argument "absurd" because it would mean public officials could shield records of their official activities, like the audit, by farming the work out to contractors.

"The court completely rejects Senate defendants' argument that since (Cyber Ninjas) and the subvendors are not 'public bodies' they are exempt from the (public records law)," Kemp wrote. "The core purpose of the public records law is to allow public access to official records and other government information so that the public may monitor the performance of government officials and their employees."

The Senate agreed to pay Cyber Ninjas $150,000 for the work, though that clearly is not enough to cover the full scope of work and equipment used at Veterans Memorial Coliseum to re-tally the approximately 2.1 million ballots.

Trump supporters including a personality with the One American News cable channel and former Overstock.com CEO Patrick Byrne have raised money they claim will help fund the audit, though details of exactly where that money is coming from and who is getting paid are not publicly known. The records should help provide those details.

"The public does not know who is financing the remaining costs or what compensation is being made to subvendors or any other entity involved in the audit," Kemp wrote.

Kemp also refused to allow the Senate Republicans to combine the case with a similar lawsuit filed by The Arizona Republic that seeks to obtain records directly from Cyber Ninjas.

Both American Oversight and The Republic opposed combining the cases because they are based on distinct legal arguments regarding why the documents are a public record that should be turned over like all government records.

"Consolidation would result in prejudice to the public," Kemp wrote. "This audit has resulted in significant public concern. Any delay weighs against the purpose of the Arizona Public Records Law which demands an expedited resolution."

American Oversight applauded the decision.
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