PHOENIX – It’s going to be at least another three weeks before Arizonans have any chance of getting access to all of the documents in the hands of Cyber Ninjas about how it has conducted its audit.
In a brief order Tuesday, the Arizona Supreme Court said it will not decide the issue of whether those records are subject to public disclosure until at least Sept. 14.
More to the point, the full court kept in place a stay that had been granted by Kathryn King. She had agreed to delay the order from the state Court of Appeals requiring the Senate to immediately produce anything in the hands of the private firm it hired to conduct the review of the 2020 general election.
In the meantime, however, the justices reminded the Senate that it already has agreed to produce those documents in the hands of not just lawmakers but also Ken Bennett whom Senate President Karen Fann hired to act as the liaison between her and Cyber Ninjas. And that is supposed to occur by the end of the month.
Tuesday's order is at least an interim setback for American Oversight, the self-proclaimed watchdog organization that filed suit earlier this year seeking all records related to the audit.
But it could be more than that.
In agreeing to review the appellate court order, the justices essentially have indicated there may be some merit to arguments by Kory Langhofer, the attorney for the Senate, that his client is not required to obtain — and publicly disclose — documents not in its possession. Potentially more significant, what the court ultimately decides on that issue could set precedent for all future public records cases.
Austin Evers, executive director of American Oversight, said Tuesday he was “disappointed” with the order. But Evers, in a prepared statement, said he remains convinced that this is simply a delay and does not portend a defeat.
“We are nevertheless confident in our case,” he said. And Evers took a shot at those involved in what his organization has considered a “partisan audit” with no basis in reality being run by a firm whose chief executive “has repeatedly circulated conspiracies and lies about widespread voter fraud.”
“Those engaged in blatant disinformation about Arizona's democracy should remember their actions will be exposed,” Evers said.
American Oversight filed suit in May, more than a month into the audit, demanding all records created, sent and received not only by the Senate but the Senate’s agents. That includes Cyber Ninjas, which has been working under a $150,000 contract to review the 2.1 million ballots cast in Maricopa County this past November, compare the results of the presidential race with what was officially reported, and examine the voting equipment used to look for flaws and signs of tampering.
“The records sought will shed light on, among other things, the planning and procedures of the audit, findings and conclusions of the audit team, costs and payment to entities and individuals associated with the audit, and the overall integrity of the audit process,” wrote attorney Roopali Desai. And she argued that prompt disclosure is necessary.
“The public’s right to see these public records is significant and immediate,” Desai said.
Langhofer said the Senate recognizes its obligation to produce records actually held by the Senate, with exceptions for those that may be protected due to things like privilege or confidentiality. But he argued there is no obligation of the Senate to produce records that it does not have, meaning those in the hands of Cyber Ninjas.
To date, that argument has gained no traction.
A trial judge ordered the Senate to begin taking possession of those Cyber Ninjas records immediately and start disclosing them. And Langhofer had no luck in his bid to get the Court of Appeals to stay that order.
“Public officials must make and maintain records reasonably necessary to provide knowledge of all activities they undertake in furtherance of their duties,” wrote appellate Judge Maria Elena Cruz just this past week. And she pointed out the audit of the election is a public function being carried out by the Senate within its constitutional powers as well as an official legislative activity.
“There is no dispute that the audit is being conducted with public funds, and that Cyber Ninjas and its sub-vendors are agents of the Senate,” Cruz said.
“In this case the Senate has argued no exemption that, if properly recognized, would shield itself from the responsibility to inform the public of activities regarding the audit,” she said. “The requested records are no less public records because they are in the possession of a third party, Cyber Ninjas.”
It is that ruling that Langhofer now is trying to get the Supreme Court to void.
The justices, without tipping their hand on what they think of his claims, apparently are willing to listen to all arguments.
They agreed to accept any "friend of the court'' briefs until Aug. 31 from those who have something to say, with a Sept. 7 deadline for those who want to respond. And the justices said they will confer -- not in public -- on the issue on Sept. 14.