Senate President Fann tells Cyber Ninjas to 'immediately make available' records on election audit

Ryan Randazzo
Arizona Republic
Senate President Karen Fann at the Senate hearing on the progress of the election audit in Maricopa County at the Arizona Senate in Phoenix on July 15, 2021.

Arizona Senate President Karen Fann on Wednesday directed the CEO of Florida-based Cyber Ninjas to turn over all communications related to the ongoing audit of the Maricopa County election.

Fann's letter to Doug Logan comes a day after the Arizona Supreme Court upheld a lower court's order for the Senate to make the Cyber Ninjas' documents public as part of a public-record lawsuit.

The Arizona Republic and a left-leaning watchdog group called American Oversight both sued the Senate when Fann and the other members did not grant requests for emails, texts and other communications concerning the audit.

Arizona's Public Records Law requires government agencies to provide such documents to anyone requesting them.

Fann's letter to Logan cited the Arizona law and orders from two Maricopa County Superior Court judges ordering the records.

"Please immediately make available to the Arizona State Senate all records within your custody or control, or within the custody or control of your subcontractors or other agents, with a substantial nexus to the audit," her letter said.

"For the avoidance of doubt, documents with a substantial nexus to the audit include without limitation all documents and communications relating to the planning and performance or execution of the audit, all policies and procedures used in connection with the audit, all records concerning audit funding or staffing, and all records that are reasonably necessary or appropriate to maintain an accurate knowledge of activities concerning the 2020 Maricopa County election audit."

Cyber Ninjas was named as a defendant in The Republic's lawsuit, and the company petitioned unsuccessfully to get a new judge in that case. Judge John Hannah ordered the company to preserve all documents related to the audit.

When he issued that order in August, Hannah said Cyber Ninjas would have just three days to turn over the records once a "stay" on a court order was lifted by the Supreme Court. The Supreme Court dissolved the stay Tuesday.

Cyber Ninjas ask court for delay

Cyber Ninjas' lawyer John "Jack" Wilenchik filed an appeal of that order Wednesday, asking the Court of Appeals to put a hold on that order so that Cyber Ninjas didn't have to produce "thousands" of records this week.

The court filing said requiring the company to provide its documents was unfair.

"And if upheld, the judge’s order would subject every state contractor or state employee to the responsibility of having to receive and respond to public-records requests from literally any member of the public, including for records that are clearly private; and to being sued for the failure to do so promptly," the request said.

Wilenchik declined to comment Wednesday.

Logan made a declaration in the court pleading, saying he doesn't have the time or staff to comply with the order, but possibly could if given 30 days.

"My staff and I are working diligently to fulfill (Cyber Ninjas') contract by producing an investigative report to the Senate, and (Cyber Ninjas) is very near the completion of its report," Logan's declaration said.

The Court of Appeals said it would pause the order through Sept. 29 at the latest. Cyber Ninjas is expected to begin turning over responsive documents to the Senate and the Senate is expected to begin reviewing them for release.

Fann, R-Prescott, said Tuesday she was concerned with the court's decision because it could mean any documents at private companies hired for government work could be subject to the records law.

On Wednesday, Fann proactively provided the letter she sent to Logan to The Arizona Republic.

That was unusual, as the Senate continues to argue in court that communications between Fann and Logan —as well as between and among other lawmakers — are shielded from the Public Records Law due to "legislative privilege," meaning they are not required to turn over documents related to their duties as lawmakers.

The Senate has claimed that nearly 3,000 documents are protected by such privilege.

American Oversight and The Republic continue to press the Senate to turn over those records.

The Senate has provided thousands of pages of documents in response to the requests and lawsuits, but much of the material is inconsequential communications with people from Arizona and beyond who shared their support for the audit, along with various news clippings.

Reach reporter Ryan Randazzo at ryan.randazzo@arizonarepublic.com or 602-444-4331. Follow him on Twitter @UtilityReporter.

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