Watchdog group wants Arizona Senate held in contempt over Cyber Ninjas' records
A left-leaning watchdog group has asked a judge to find the Arizona Senate in contempt of a court order for not turning over Cyber Ninjas' emails and other records from the election audit.
The group, American Oversight, sued Senate President Karen Fann, R-Prescott, and the Senate seeking emails, texts and other documents from the audit. Cyber Ninjas is the lead contractor the Senate Republicans selected to conduct the audit.
In a motion filed Thursday, American Oversight says the Senate should be found in contempt of a civil court order because it has yet to get the records from Cyber Ninjas and turn them over as the court ordered.
American Oversight is seeking swift action from Maricopa County Superior Court Judge Michael Kemp because of the pending release of the audit results on Friday by the Senate.
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"Defendants still have not produced the documents they were ordered to 'immediately' produce back on August 2, 2021," the group wrote in its court filing. "They are taking no steps to obtain timely and complete production of records from Cyber Ninjas ... Defendants’ ongoing violation of this court’s orders must be remedied immediately. Defendants are about to release the audit report while depriving Arizonans of their statutory right to see what lies beneath the report."
The Senate unsuccessfully challenged the order to the Court of Appeals and Arizona Supreme Court.
After the Supreme Court declined to take up the case earlier this month, Fann directed Cyber Ninjas to provide the requested records to the Senate.
"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.
Cyber Ninjas told the Senate in an email last week that the small company was too busy working on the audit to comply with the records request immediately.
"CNI (Cyber Ninjas) intends to produce copies of its communications with the Senate and its officials that have a substantial nexus to the contract/audit," said the letter from Jack Wilenchik, the company's lawyer.
"CNI is unable to make that production at this moment in time because it needs to focus on completing its contractual duty of producing a written report. Once that report has been finished and the report has been produced (by next Friday Sep. 24), then it will promptly focus on the production of such communications (and of course earlier if and as it is able to do so)."
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American Oversight also requested a court hearing as soon as possible with Fann and Sen. Warren Petersen, R-Gilbert, to determine "appropriate sanctions" and ensure the records are turned over.
The Arizona Republic is fighting a similar legal battle for audit records and has named Cyber Ninjas as a defendant in its case.
Last week the judge in The Republic's case made clear that Cyber Ninjas' records are public and should be turned over by the company.
He noted that Cyber Ninjas is performing work for the Senate using public funds, all pointing to its obligation to comply with the state's laws for public records.
"First, under the unique circumstances of this case the Ninjas are a 'public officer' within the plain meaning of the Public Records Law," Maricopa County Superior Court Judge John Hannah wrote. "Second, the Ninjas have the obligations that the Public Records Law assigns to a 'custodian' of public records."
The Senate has turned over tens of thousands of records but claims that more than 2,000 documents are protected because they contain legal advice, confidential legislative material, personal information or other matters that do not require them to be disclosed. And it hasn't turned over any records possessed by Cyber Ninjas or subcontractors involved in the audit.
Lawyers for the Senate and The Republic are negotiating which of those documents the Senate possesses are to be made public. A hearing is scheduled Friday in that case.
Meanwhile Cyber Ninjas continues to challenge The Republic's case in the Arizona Court of Appeals, while the Senate withdrew its challenge there.
Reach reporter Ryan Randazzo at email@example.com or 602-444-4331. Follow him on Twitter @UtilityReporter.