PHOENIX — A self-described nonpartisan watchdog group is demanding immediate access to all the documents and materials related to the Senate’s audit of the 2020 election results.
New legal papers filed Wednesday in Maricopa County Superior Court on behalf of American Oversight contend anything the Senate has acquired as part of its effort is subject to disclosure under the state’s Public Records Law. More to the point, attorney Roopali Desai said it’s legally irrelevant if some of the materials are now in the hands of Cyber Ninjas, the private firm hired by Senate President Karen Fann to conduct the audit.
Desai said the only reason Cyber Ninjas got the materials in the first place was because they were demanded — in fact, subpoenaed — by the Senate. And Cyber Ninjas is acting under contract with the Senate.
“Officers and public bodies cannot avoid their responsibilities under the Public Records Law to keep, maintain, and produce public records by contracting key public functions (using public funds) to private contractors,’’ Desai wrote. “A contrary result would circumvent a citizen’s right of access to records and thwart the very purpose of the Public Records Law.’’
Fann said late Wednesday she had just heard of the litigation and will review it with Senate attorneys before commenting.
The lawsuit does not seek access to the ballots themselves which the county turned over under subpoena and are not public records.
And Fann already has made public the contract documents between the Senate and Cyber Ninjas.
But the lawsuit says at least part of what is missing is any contracts involving third-party vendors that the Senate directly or indirectly retained through Cyber Ninjas.
Potentially more significant, Desai also wants any records reflecting the audit’s budget and any external funding that may have been received.
Fann has told Capitol Media Services the only thing she knows about is the $150,000 the Senate agreed to pay Cyber Ninjas for the work.
She acknowledged that there is probably money going directly to the contractor. And outside groups are soliciting donations with the aim of raising $2.8 million for the effort.
But Fann said those dollars are not coming through the Senate, though she said she expects a full accounting from Cyber Ninjas when the audit is over.
Desai said that’s not good enough.
“The audit is a public function,’’ she said.
One way Desai thinks she can get at those numbers is by demanding the employment and payroll records of those hired by Cyber Ninjas. And the presumption, she said, is that at least some amount of that money is coming from public sources — making it a public record.
“I don’t know how you can say with a straight face that’s somehow separate and apart from the audit from the audit,’’ Desai said. “But for the audit, you wouldn’t incur that expenses, you wouldn’t enter into that employment agreement and you wouldn’t be obligated to pay that employee.’’
Put another way, Desai said all of the work being done at Veterans Memorial Coliseum is directly linked to — and because of — a state function.
Fann effectively has conceded that.
In pursuing the audit, she said the purpose was not to overturn the election results that showed Joe Biden defeating Donald Trump despite such allegations by at least some lawmakers that the election results had been tampered with to ensure a Biden victory.
Instead, Fann said, the whole idea is to examine how the balloting was handled, at least in Maricopa County, so senators could decide whether changes need to be made in laws governing the conduct of elections. And Desai said that makes everything the Senate is doing a matter of public record, regardless of whether it is reviewing the ballots and election equipment itself or has contracted it out to Cyber Ninjas.
She said the same is true for any communications sent or received by Ken Bennett who Fann has named as the liaison between the Senate and Cyber Ninjas.
“Cyber Ninjas, Mr. Bennett and the subcontractors working on the audit are performing a public function on behalf of the Senate defendants,’’ Roopali wrote. And she said the law states that records are public if they are “reasonably necessary or appropriate to maintain an accurate knowledge of the official activities’’ of the Senate.
American Oversight was launched in 2017 initially to track the activities of the Trump administration and look for potential fraud.
Austin Evers, the organization’s executive director, said at the time that the intent to use public records requests “to extract information about corruption, about how money’s being misspent, about how rules aren’t being followed, and publicize it so at a minimum, voters can hold their government accountable.’’