AZ Court Of Appeals Orders Arizona Senate To Produce Cyber Ninjas GQP ‘Fraudit’ Documents ‘Immediately’

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The Arizona Court of Appeals on Friday slapped down the state Senate GQP’s efforts to withhold about 1,100 records related to the GQP sham “fraudit” of the 2020 election.

Howard Fishcer reports, Court orders Arizona Senate to immediately disclose election-audit records:

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In a 14-page ruling Friday, the three-judge panel turned away arguments that the documents are protected by “legislative privilege.” They said there is no evidence the [GQP “fraudit”], ordered by Senate President Karen Fann, was in any way related to the official business of state lawmakers.

The judges also rejected the Senate’s concern that releasing the documents would open up lawmakers’ discussions about the audit to public scrutiny. An attorney for the Senate, Kory Langhofer, had argued disclosure would undermine what he said is a constitutional recognition that legislators are entitled to have private conversations and communications because that is part of their job.

In Friday’s order, the court ordered the Senate to “immediately disclose” all the records it sought to shield.

But appellate Judge Michael Brown, writing for the unanimous three-judge panel, did offer an option.

He said to the extent senators believe release of certain documents would directly threaten the legislative process, they can instead give them to Maricopa County Superior Court Judge Michael Kemp. It would be up to Kemp, after reviewing the records [in camera inspection], to decided whether they must be disclosed.

There was no immediate response from Fann, a Prescott Republican.

Hanging in the balance are emails, texts and other documents possessed by the Senate and others held by Cyber Ninjas, the private firm Fann hired to conduct the review of the 2020 presidential election in Maricopa County.

That review came after official results — certified by state officials, including Republican Gov. Doug Ducey — showed that Democrat Joe Biden outpolled incumbent Republican Donald Trump by 10,457 votes statewide. Biden’s win was fueled in large part by beating Trump in Maricopa County by 45,109 votes.

There were charges of irregularities, all unproven. Fann said at the time she ordered the audit to respond to those concerns.

As it turned out, Cyber Ninjas reported that its own hand count of Maricopa County’s ballots confirmed Biden’s win — and by a slightly larger margin than the official count.

American Oversight, a nonpartisan watchdog group, sued for public release of documents related to the audit.

The Senate surrendered some. But it claimed a right to withhold various documents, including all communications involving Fann, Senate Judiciary Committee chairman Warren Petersen, the liaisons Fann chose to interact with Cyber Ninjas, and communications with that company and its subcontractors.

When a trial judge rebuffed the claim of privilege, the Senate appealed.

Brown said Arizona law requires public officers to maintain all records to reflect their official activities and those supported with public funds. The items sought clearly fit within the definition of “public records,” he said.

The judge acknowledged there is a right of “legislative privilege.” But Brown said it is more limited than the Senate contends.

“We reject the Senate’s apparent contention that the privilege blocks the disclosure under the public records law of any record that bears any connection to a legislative function,” he wrote. Brown said there is a “strong presumption” of disclosure in the public records law.

Langhofer argued that legislative privilege is automatic in every investigation the Senate conducts.

He said legislators issued subpoenas related to the audit “with an eye to introducing possible reform proposals” in election laws.

Brown said that argument held no water.

“Nothing in the record shows that the prime purpose of the audit was to identify changes required to Arizona’s voting laws,” he said. The Legislature wasn’t in session during the process, he noted.

“The audit’s primary objective was to verify that election procedures were sufficiently observed,” the judge said. He noted that the “statement of work” outlining Cyber Ninjas’ role was to “validate every area of the voting process to ensure the integrity of the vote.”

The judge suggested the audit looks more like an administrative action than anything related to crafting state laws.

“The audit’s stated purpose reflects no promise to propose legislation in the future,” Brown said. “And while the audit might have revealed areas in Arizona’s election process that could be the subject of new legislation, the connection between the audit and any future legislation is too tenuous to conclude that the audit could reasonably qualify as a legitimate legislative act.”

Brown said that is backed up by the September public hearing in which the results of the audit report were released.

“No sworn or questioned witnesses were at the hearing, nor did any debate or deliberating occur,” he said. “In fact, the only legislators that were present were Sens. Fann and Petersen.”

Nor were the appellate judges swayed by arguments that the audit was a “fact-finding investigation in furtherance of potential future lawmakers projects.”

Brown said lawmakers do have the power to conduct investigations aimed at determining if changes are needed in state law. “But the mere fact that the legislature conducted an investigation does not mean it is necessarily protected by the legislative privilege,” he wrote.

In a related matter, Maricopa County Superior Court Judge Michael Kemp, has ruled the same way in a nearly identical case: Cyber Ninjas’ records are public and those who seek them should get them. Cyber Ninjas public records case with The Arizona Republic gets new judge, but rulings are the same:

Cyber Ninjas asked for a new judge in the lawsuit brought by The Arizona Republic seeking records from the 2020 election review, and the company got it.

But that new judge, Maricopa County Superior Court Judge Michael Kemp, has ruled the same way in a nearly identical case: Cyber Ninjas’ records are public and those who seek them should get them.

Cyber Ninjas’ lawyer Jack Wilenchik last week asked for a new judge in The Republic’s records case following a highly contentious hearing during which Maricopa County Superior Court Judge John Hannah imposed a $50,000 a day fine against the company and rejected Wilenchik’s request to abandon his client, who he said wasn’t paying him.

Wilenchik then filed a request to remove Hannah, claiming the judge was biased.

Before the court could decide whether to grant Wilenchik’s request, Kemp stepped in and on Wednesday consolidated The Republic’s case with a similar case filed by the left-leaning watchdog organization called American Oversight.

Both The Republic and American Oversight sued the Arizona Senate for records from the partisan and controversial election “audit” conducted at the Veterans Memorial Coliseum last year. The Republic also named Cyber Ninjas, the Senate’s contractor, as a defendant, while American Oversight did not.

But Kemp, who has presided over the American Oversight case, recently “enjoined” Cyber Ninjas as a defendant in that case, and he said in a Wednesday decision that the cases are now similar enough to combine them, rendering the question of Hannah’s disqualification moot. He previously denied a request by the Senate to combine the cases.

“At this point in time both cases are focused on the narrow issue of forcing (Cyber Ninjas) to comply with the court’s previous orders,” Kemp wrote, noting that both he and Hannah have decided the company’s documents are public records that should be turned over.

“Both cases are now stalled due to (Cyber Ninjas’) refusal to turn over public documents in their physical possession despite previous court orders which have been affirmed on appeal,” Kemp wrote.

The Republic sued the Arizona Senate and Cyber Ninjas seeking emails, texts and other documents from the election review. The news organization was rebuffed when it requested the records under the state Public Records Law.

American Oversight also sued after not getting the records when it requested them.

Both judges, Hannah and Kemp, said the Cyber Ninjas documents are public records. But Cyber Ninjas has refused to turn over its documents, even after Hannah imposed the daily fines.

Logan ordered to give deposition

The company’s CEO, Doug Logan, has apparently dissolved the company after losing millions on the election review, which Logan claimed cost him more than the millions he collected in donations from partisan groups seeking to overturn President Joe Biden’s victory over former President Donald Trump in 2020.

Kemp recently ordered Logan to participate in a deposition no later than Jan. 27, and threatened to issue an arrest warrant if he fails to appear. Kemp also awarded American Oversight $1,000 to be paid by Logan or Cyber Ninjas to compensate the group for having to file the motion to compel his deposition.

Kemp’s ruling said that the Court of Appeals decision will apply to the consolidated case.

The Huffington Post follows up, Arizona Senate, Which Hired Cyber Ninjas, Now Desperately Seeking Its Election Records:

Arizona’s Republican State Senate, which hired the discredited Cyber Ninjas company to carry out a vote audit of Maricopa County, is now desperately seeking the company’s hidden public records to comply with a court order.

Senate Republicans recently discovered the Ninjas leased a mysterious “data center,” and have sent a two-sentence letter to the company and others involved in the botched audit, asking if public records are stored there, The Arizona Republic reported.

“We recently learned that a data center, possibly leased to Cyber Ninjas … may be housing records concerning the Arizona State Senate’s audit of the 2020 election in Maricopa County,” Arizona Senate President Karen Fann wrote in the letter sent Thursday.

“Please confirm as soon as possible whether this information is correct and, if so, when and on what terms the Senate may access the facility or its resources.”

As of Sunday, no response was reported.

The Cyber Ninjas shut down and fired all personnel early this month. The company was facing $50,000 daily fines beginning Jan. 6 until it turned over public records it collected as part of the audit. The records have yet to be provided.

Fann told the Republic she has no idea where the data center is located.

“There’s not a lot I can say,” she said. “I received info that possible records were stored in a data center.”

The newspaper and nonprofit watchdog group American Oversight sued to make the records public.

Last week, an Arizona judge ordered Cyber Ninjas and CEO Doug Logan to answer questions under oath from American Oversight regarding the company’s failure to turn over documents.

“As much as he might like to walk away from the dumpster fire he helped create, Doug Logan is not above the law. We look forward to deposing him on the 27th, and if it takes an arrest warrant to ensure the public gets the full story of the ‘audit,’ then so be it,” American Oversight senior adviser Melanie Sloan said in a statement made available to HuffPost.

“Immediately disclose” means NOW, as in last Friday. The Arizona Republic and American Oversight should move the Court for sanctions to hold both the Senate’s agent, Doug Logan, and the principal, Senate President Karen Fann in contempt of court. Logan can be jailed until he complies, but since the Arizona Legislature is in session, Sen. Fann can only be be fined with a daily accruing fine. It should be personal liability to her; taxpayers should not be on the hook for any more expenses unnecessarily incurred by the reckless and irresponsible Arizona Senate President.





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