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Maricopa County Superior Court Judge Michael Kemp heard arguments that the Senate has done little to comply since early August, when the judge ordered it to immediately produce records related to its audit of the 2020 election. Those include records in the hands of Cyber Ninjas Inc., the private firm Fann hired to conduct the audit.

The judge noted, however, that his order was stayed while appellate courts weighed the issue. And that stay was not dissolved until Sept. 14, he said.

American Oversight, a self-described nonpartisan watchdog group, has sued trying to get the records released to public view. Its attorney Keith Beauchamp said Fann’s only action has been to send a letter to Cyber Ninjas asking for the records. He also told Kemp the company has pretty much told the Senate it does not intend to comply.

“That letter to Cyber Ninjas in no way constitutes sufficiently reasonable steps by the Senate to meet their obligations to provide documents on behalf of their various respective agents,� Beauchamp told the judge. “And given that we don’t have compliance with the court’s order yet, I think the burden is on the Senate to show they have taken all reasonable steps within their power to comply with the court’s order.�

Legislative immunity at issue

Kemp also has to rule on a broader issue.

Kory Langhofer, attorney for Fann and the Senate, contends that some of what American Oversight wants is protected by “legislative privilege.� That includes not just what may yet be produced by Cyber Ninjas but about 1,000 records the Senate already has but is refusing to surrender.

Beauchamp, for his part, wants Kemp to rule that the privilege — to the extent it exists — covers only communications that are part of the process of crafting legislation.

In this case, he said, what is sought relates to how the audit was conducted and to the documents that led up to the three-volume audit report released late last month. None relates to the act of legislating, Beauchamp told Kemp.

What Kemp ultimately rules could set the bar for future cases of how much, or how little, lawmakers can shield from public view.

Records should be made public, courts say

Hanging in the balance is Kemp’s previous order that the public has a right to see the Cyber Ninjas records.

That was affirmed by the Court of Appeals, which said the company was performing a core governmental function. That made its records related to the audit as public as if they were produced by the Senate itself, the court ruled.

The court was not impressed by the Senate’s arguments that it did not have the records. “The requested records are no less public records simply because they are in the possession of a third party,� wrote appellate judge Maria Elena Cruz.

That was upheld by the ÃÛÁÄÖ±²¥ Supreme Court.

The trick now is actually getting them: Beauchamp told the judge the company is balking.

“Cyber Ninjas is not going to give to the Senate all of the documents that the Senate is obligated to produce pursuant to the Court of Appeals order and pursuant to this court’s order,� he said.

He wants Kemp to order the Senate to do more than simply send a letter.

If and when that happens, there would still be Langhofer’s argument about legislative privilege. He said there’s a reason to keep certain documents secret, including things that lawmakers — and, in particular, Fann as Senate president — get from outside contractors like Cyber Ninjas.

“The quality of discussion inside the Legislature, the advice that consultants and staffers give to the president will be muted,� Langhofer said. “If what you have to say, particularly when it goes against your own party’s base, is immediately available for public inspection ... it will do lasting damage to the quality of discussion and argument behind closed doors of the Legislature.�

Judge questions the argument

Kemp, however, suggested the privilege is not as broad as Langhofer claims.

He said it would be one thing if lawmakers were deliberating on a specific piece of legislation.

“This is an audit, this is kind of an investigation,� the judge said. “And there isn’t any proposed legislation or anything that they’re deliberating about. So how would the procedures and policies and the way that the audit was conducted, how would that chill deliberations?�

Langhofer argued the judge is looking at it from too narrow a perspective.

For example, he said, there might be communications over whether the audit itself was a good idea or whether the scope of the audit should be expanded. Langhofer said lawmakers need a “safe space� to have those discussions.

He rejected the idea that privilege applies only after a bill is proposed. “What we want the Legislature to do is figure out the facts before introducing legislation,� Langhofer said. “That’s the Legislature we want, right?�

Beauchamp disagreed.

“The Senate must demonstrate that the disclosure of the record that they’re withholding would impair legislative deliberation,� he said. “Well, they haven’t made that showing. And there aren’t any deliberations.�

Kemp has other issues he needs to decide.

One is whether to consolidate this lawsuit with a separate one brought by Phoenix Newspapers, doing business as The ÃÛÁÄÖ±²¥ Republic. It filed its own public records lawsuit.

In that case, another Maricopa County Superior Court judge, John Hannah, already rebuffed Cyber Ninjas’ claim that, as a private entity, it cannot be sued under the state’s public records law. Hannah essentially reached the same conclusion as Kemp that the audit the company performed is a government function, making its activities and records public.