The Arizona Republic has asked a judge to find Cyber Ninjas in contempt of a court order to turn over records from work the company did on behalf of the state Senate in reviewing the 2020 election in Maricopa County.
The Florida-based company so far has only turned over a fraction of the records that Maricopa County Superior Court Judge John Hannah ordered them to make public on Aug. 24. The Arizona Court of Appeals has reaffirmed that order.
Friday marked 30 days since a lawyer for Cyber Ninjas told a court the company could not produce the records immediately but could turn over approximately 60,000 records in 30 days on a rolling basis.
The Republic sued the Senate and Cyber Ninjas, its lead contractor, in June for records such as emails, texts and other communications related to the audit. The news organization first requested the documents from the Senate and Cyber Ninjas through the Arizona Public Records Law but was rebuffed.
Hannah ruled that the records are public and should be provided to the newspaper.
Cyber Ninjas has said it has about 60,000 documents that would be subject to the order.
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A left-leaning watchdog group called American Oversight also has sued the Senate, but not the contractor, for similar records. The judge in that case, Maricopa County Superior Court Judge Michael Kemp, also has determined the records are public, including those in the possession of Cyber Ninjas.
The Senate appealed the American Oversight case first in the Court of Appeals then to the state Supreme Court, which declined to take action.
Senate President Karen Fann, R-Prescott, who was in charge of the election review, wrote to Cyber Ninjas last month when the Supreme Court declined to intervene, and asked the company to turn over its records.
The Court of Appeals directed Cyber Ninjas to turn the records over to the Senate, which could review them and in turn provide them to The Republic.
But Cyber Ninjas has not complied with those orders, according to The Republic's latest court filing, made Friday. The company has only provided about 300 documents out of the 60,000.
"Civil contempt is appropriate when a party subject to a court-issued order fails to obey such an order," Republic attorney David Bodney said in the Friday motion, which also seeks a hearing for the judge to determine financial penalties for Cyber Ninjas.
"Cyber Ninjas’ audit-related records each have a substantial nexus to government activities — namely, the Senate-ordered audit of the 2020 election in Maricopa County — and those records are not shielded from disclosure simply because they were created by a private entity acting as the Senate’s contractor with respect to the audit."
Senate documents also challenged
The Senate has turned over thousands of its documents from the audit, but Republican leaders also are fighting in court to keep some communications private.
The Senate argued that some of the documents are shielded by "legislative privilege," which lawmakers argue allows them to remain private if they pertain to crafting laws.
The Republic asked Hannah to personally review six records that the Senate maintained were protected by privilege. Hannah ordered the Senate to turn the records over to him, which it did this week.
One of the six records in question was a text exchange between Fann and Phil Waldron, who was working with a security firm vying to work for the Senate on the audit.
Waldron is a former manager for pharmaceutical companies and a retired colonel in the U.S. Army Reserve, according to a biography sent to the state Senate.
The Senate released some portions of the text string but redacted others, citing legislative privilege.
Before reviewing the texts, Hannah said the Senate's argument for protecting communications with an informal adviser like Waldron were "dubious."
Another record the Senate has tried to keep private is a markup of the Cyber Ninjas contract by conspiracy theorist Shiva Ayyudurai, whom the Senate paid to review ballot envelopes.
Hannah likewise said there is no privilege for informal advisers that would protect the document.
Also under review is an email from audit spokesman Randy Pullen to the email account for the audit, which contained notes from Cyber Ninjas CEO Doug Logan that were copied and pasted into the document.
Hannah questioned why such a document would receive protection since neither men are lawmakers and therefore couldn't discuss pending legislation.
The other three documents in question are emails and texts between members of the Arizona House and Senate. Hannah said that because the senders and recipients are all lawmakers, it's plausible they discussed pending legislation, but that only a review of the documents could determine that.
Second judge favors disclosure
The Senate also is claiming legislative privilege in the lawsuit from American Oversight. The judge in that case said in a Thursday order that the privilege does not protect the majority of the documents the Senate wants to keep confidential.
Kemp said legislative privilege doesn't allow the Senate to keep the records private because there is no legislative proceeding taking place and state law favors disclosure of public records.
"American Oversight’s interest, on behalf of the public at large, significantly outweighs the Senate defendants’ interest in non-disclosure," Kemp wrote in a Thursday court filing.
"The audit challenges whether there was an election free of fraud, corruption or incompetence. The stakes could not be higher and transparency, which is at the heart of the (Public Records Law), substantially outweighs any concern regarding chilling future legislative deliberations."
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Source : https://www.indystar.com/story/news/politics/arizona/2021/10/15/arizona-audit-arizona-republic-seeks-contempt-order-against-cyber-ninjas/8444162002/1203