A judge in Arizona ordered Wednesday that the company responsible for auditing the 2020 Maricopa county election must preserve all records so that they can be made available to the public.
The Arizona Senate and Cyber Ninjas (based in Florida) have argued that emails regarding the audit and other records aren't subject to the state’s Public Records Law, which would require them disclosure.
The Arizona Republic brought the case. Although there are several rulings regarding Cyber Ninjas' audit records, this is the first to directly address the company.
John Hannah, Maricopa County Superior Court Judge, didn't direct the Senate or Cyber Ninjas immediately to turn these documents over, but an identical order from another judge was placed on hold Tuesday, by the Arizona Supreme Court.
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The order is intended to ensure Cyber Ninjas keep the emails, so that the public can access them after the litigation is over.
Hannah stated that all defendants, Cyber Ninjas included, were ordered to protect, preserve, and preserve from deterioration and mutilation any records in their possession, control, or custody that are reasonable necessary or appropriate to keep an accurate record of their official activities regarding the 2020 Maricopa County Election Audit, including records about the funding, performance, and staffing.
After learning that Doug Logan, its CEO, had been infected with COVID-19, the Senate Republicans hired Cyber Ninjas to conduct the unusual audit. The elected officials still await a preliminary report from Cyber Ninjas.
Two lawsuits seek Ninjas' records
Hand counting of test ballots takes place on July 14, 2021 at the Arizona State Fairgrounds, Phoenix.
Two lawsuits are pending against the Republic seeking records. These include emails and communications between people involved in the audit.
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American Oversight, a non-profit group, sued the Senate to obtain the documents. Former Obama administration officials founded the group to investigate Trump's administration.
Following this, the Republic filed a lawsuit naming Cyber Ninjas as defendants. The Republic and American Oversight requested the documents initially through the state Public Records Law. They then filed separate lawsuits when the records weren't turned over.
The audit documents are public records as they are under the direction and control of the Senate. According to The Republic, records in Cyber Ninjas' custody or control are required to be made available to the Senate.
Continue reading: "We need to stop counting": Documents detail intense pressure exerted by Trump allies on Maricopa County supervisors
All communications were to be made public by the American Oversight judge, which was appealed by the Senate.
The Senate lost again at the Court of Appeals. It appealed to Supreme Court. On Tuesday, the Supreme Court placed a hold on an order for the Senate's production of records in Cyber Ninjas' possession.
Hannah stated in his Wednesday order, however, that the Cyber Ninjas have only three business days to hand over documents once the hold (or "stay", in legalese) is lifted. Unless the Supreme Court rules otherwise.
Some records are already available
While Cyber Ninjas continue litigation over the records they control, the judges in The Republic's and American Oversight cases have ordered that the Senate turn over any records it has.
Both cases are being answered by the Senate. The Senate will post those records on a rolling basis on a public website.
American Oversight's lawyer argued that the Senate was moving too slowly. A judge ordered the release all documents by August 31 and a log of records withheld for legal reasons.
Hannah issued a similar order Wednesday requiring that the Senate provide records by Aug. 31 along with a log listing documents it believes aren't subject to public disclosure.
The Republic will be able to challenge the Senate's decision to not disclose records. Hannah's Wednesday order states that this would mean the court must review the documents to make a case-bycase determination.
Supreme Court to issue final decision
Cyber Ninjas has not been asked by the Senate to hand over audit-related records. Cyber Ninjas also declined to turn them in.
Karen Fann, Senate President, at the Arizona Senate hearing on the status of the election audit in Maricopa County. This was held in Phoenix, Arizona on July 15, 2021.
Senator President Karen Fann (R-Prescott) said that it would be a bad precedent to make government contractors subject to the Public Records Law.
The Senate argued in court that communications in the possession government contractors are not covered by the state Public Records Law. It also argued that legislative immunity prevents the Senate from having to produce the records.
American Oversight didn't name Cyber Ninjas among its defendants in its case. Therefore, orders in that litigation are not applicable to the company. However, Cyber Ninjas was named by The Republic as a defendant.
Cyber Ninjas also rejected the motion to dismiss by Hannah on Wednesday. Cyber Ninjas is still trying to replace Hannah as a judge. This request is being reviewed by the Supreme Court.
Reach reporter Ryan Randazzo at ryan.randazzo@arizonarepublic.com or 602-444-4331. Follow him @UtilityReporter.
This article first appeared on Arizona Republic: Arizona audit: Judge orders Cyber Ninjas preserve documents
