PHOENIX — The attorney for the firm conducting the audit of the 2020 election for the Senate told a judge Monday he has no right to order the firm to cough up the records of the audit in its possession.
“Cyber Ninjas Inc. is not a public officer of a public body,” Jack Wilenchik argued to Maricopa County Superior Court Judge John Hannah. “That is the only person who is subject to a public records request under the law.”
In fact, he said, the fact that most of the money for the audit is coming from sources outside the Senate from private donations "is even more an indication that my client is not subject to the public records law.''
And Wilenchik warned Hannah there would be far-reaching implications if he concludes his client's contract with the Senate somehow makes its records public.”
“It may sound a little hokey to say it, but it very much opens the floodgates,” he said. “Who's next?”
For example, Wilenchik suggested, such a ruling could make the records of Dominion Voting Systems subject to public disclosure because that firm, under contract with Maricopa County, provides the equipment to perform a governmental function, specifically the counting of ballots. Ditto, he said, of Runbeck Election Services, which prints the ballots.
But David Bodney, representing the Arizona Republic, told Hannah there is a risk in agreeing with Cyber Ninjas - and with the Senate, which also contends that those records are not subject to disclosure.
“I can say that if their view of the law is correct, that a public body could launder public funds through a private entity for ill purposes and the public would have no way of knowing about it.”
This is actually the second lawsuit seeking access to the records held by Cyber Ninjas about its activities in conducting the audit.
The state Court of Appeals already has ordered the Senate to surrender all records related to the audit. And the appellate judges have said that includes records held by Cyber Ninjas, which they said is the custodian of the Senate's public records.
But Cyber Ninjas is not a party to that case. And that raises the question of whether the Supreme Court will — or can — order the Senate to take possession of those records and then release them publicly.
“We have not had a request from the Senate for these records,” Wilenchik acknowledged to Hannah on Monday.
In this case, however, Cyber Ninjas is a defendant. And that gives Hannah the option to directly order the firm to surrender those documents itself to the public rather than relying on Senate production.”
Bodney said there are reasons for him to do that.
“First, to end the shell game, to stop the runaround, and to hold the Senate and its authorized agent Cyber Ninjas accountable to the public for how it spends public dollars,” he said, noting the $150,000 contract. “The public has a right to this basic information about the performance, the funding and the staffing of this audit.”
And, apparently, there's a lot that may interest the public. Attorney Kory Langhofer told the court there are about 60,000 records that may fit within the definition of what is being sought.
That issue of what Cyber Ninjas has been up to, how it conducted the audit and even with whom the company and its subcontractors had contact could be crucial for the public to determine what weight to give the final report when it is finally released.
The process has been questioned even before a contract was issued, what with Logan previously having made statements questioning the election returns. Then there were issues about exactly how the 2.1 million ballots were being reviewed and the election equipment from Maricopa County were being examined.
And it only became more complicated when it was revealed that Cyber Ninjas had taken $5.6 million from outside sources -- above and beyond the $150,000 paid by the Senate -- much of this linked to individuals or organizations that have publicly said the election results declaring Joe Biden the winner were fraudulent.
Bodney contends the records of Cyber Ninjas, including all internal and external communications, are as public as if they were sent or received by senators themselves. And that, he told Hannah, should end the discussion.
“The Senate defendants have admitted the legislature's a public body under the public records law,” Bodney said.
“The Senate defendants have admitted that Cyber Ninjas, a Florida corporation, is its authorized agent,” he continued. “And they've also admitted that the Senate has paid, or committed to pay, $150,000 in public funds to Cyber Ninjas to oversee a full and complete election audit to ‘ensure the integrity of the vote.’”
Senate President Karen Fann said she got a “portion” of the draft report Monday from Cyber Ninjas. She said delivery of the balance has been delayed because CEO Doug Logan and two other members of the audit team have tested positive for COVID-19 “and are quite sick.”
Fann also said the Senate did not get images from Maricopa County of the envelopes used to send in early ballots until last Thursday and wants to analyze them.
The Senate president said she and her team, including staff and Sen. Warren Petersen, R-Gilbert, who chairs the Judiciary Committee, will meet Wednesday to start reviewing the draft behind closed doors.
“When the remainder of the draft is submitted, the Senat team will hold another meeting to continue checking for accuracy, clarity, and proof of documentation of findings,” Fann said. Only then will it be presented to the full Senate Judiciary Committee and made public.
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