Fann v. Kemp

• Citation: 62 Arizona Cases Digest 28,505 P.3d 301
• Decision Date: 21 January 2022
• Docket Number: 1 CA-SA 21-0216
• Parties: Karen FANN, in her official capacity as President of the Arizona Senate ; Warren Petersen, in his official capacity as Chairman of the Senate Judiciary Committee; the Arizona Senate, a house of the Arizona Legislature, Petitioners, v. The Honorable Michael KEMP, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge, American Oversight, Real Party in Interest.
• Court: Court of Appeals of Arizona

62 Arizona Cases Digest 28

505 P.3d 301

Karen FANN, in her official capacity as President of the Arizona Senate ; Warren Petersen, in his official capacity as Chairman of the Senate Judiciary Committee; the Arizona Senate, a house of the Arizona Legislature, Petitioners,

v. The Honorable Michael KEMP, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge,American Oversight, Real Party in Interest.

No. 1 CA-SA 21-0216

Court of Appeals of Arizona, Division 1.

FILED January 21, 2022

Statecraft PLLC, Phoenix, By Kory A. Langhofer, Thomas J. Basile, Counsel for Petitioners

Coppersmith Brockelman PLC, Phoenix, By L. Keith Beauchamp, Roopali H. Desai, D. Andrew Gaona, Counsel for Real Party in Interest

Ballard Spahr LLP, Phoenix, By David J. Bodney, Craig C. Hoffman, Counsel for Amicus Curiae, Phoenix Newspapers, Inc., and Kathy Tulumello

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

BROWN, Judge:

¶1 In this public records case, Senate President Karen Fann, Senate Judiciary Committee Chairman Warren Petersen, and the Arizona Senate (collectively "the Senate") seek special action relief from the superior court's order rejecting the Senate's contention that it may withhold about 1,100 records relating to its election audit based on legislative privilege. In this decision, we address whether (1) the privilege broadly shields all the records listed in the Senate's privilege log from disclosure under Arizona's public records law ("PRL"), A.R.S. § 39-121 ; and (2) the Senate globally waived the privilege for all records concerning the audit by making periodic and comprehensive public statements.

¶2 We conclude the Senate has not met its burden of showing that all communications listed in its privilege log may be withheld based on legislative privilege. The superior court erred, however, in finding a global waiver of the privilege.

BACKGROUND

¶3 In March 2021, the Senate initiated an audit of approximately 2.1 million ballots cast during the November 2020 general election conducted in Maricopa County. The Senate contracted with a private corporation, Cyber Ninjas, to serve as the primary vendor for the project. As provided in the "Statement of Work," the Senate and Cyber Ninjas described the audit's scope as an "attempt to validate every area of the voting process to ensure the integrity of the vote," and would include auditing of "the registration and votes cast, the vote counts and tallies, the electronic voting system, as well as auditing the reported results." They also agreed that at the audit's conclusion, the "primary deliverable" would be a report detailing all findings discovered during the audit, including recommendations "on how to prevent any detected weaknesses from being a problem in future elections (if applicable)." Six months later, Cyber Ninjas delivered its audit report to the Senate, which then released the report to the public and conducted a public hearing outlining the report's findings and conclusions.

¶4 Meanwhile, American Oversight, a nonprofit organization that advocates for government transparency, submitted requests to the Senate and Cyber Ninjas for production of public records relating to the audit. When the Senate refused to produce most of the requested records, American Oversight filed a complaint under the PRL to compel disclosure of the documents, including those in the possession or custody of Cyber Ninjas and its contractors.

¶5 The Senate moved to dismiss the complaint, asserting in part that legislative immunity barred the lawsuit. The superior court rejected the Senate's assertion and directed it to immediately disclose "all documents and communications relating to the planning and execution of the audit, all policies and procedures being used by the agents of the Senate Defendants, and all records disclosing specifically who is paying for and financing this legislative activity, as well as precisely how much is being paid," and "all other documents having ‘a substantial nexus to the audit activities.’ " This court accepted jurisdiction of the Senate's ensuing special action petition but denied relief. Fann v. Kemp ("Fann I "), 1 CA-SA 21-0141, 2021 WL 3674157, at *1, ¶ 1 (Ariz. App. Aug. 19, 2021) (mem. decision).

¶6 In Fann I , the Senate argued it was constitutionally immune from suit because the decision to withhold or disclose audit records is a "legitimate legislative function." Id. at *2, ¶ 12. We rejected that argument, reasoning in part that the legislature could have exempted itself from the PRL, but it chose not to. Id. at *3, ¶ 15. We noted the PRL is subject to many exceptions, but it does not afford a blanket exemption for the legislature. Id. at ¶ 16. We therefore concluded that "[a]llowing the legislature to disregard the clear mandate of the PRL would undermine the integrity of the legislative process and discourage transparency, which contradicts the purpose of both the immunity doctrine and the PRL." Id. at ¶ 17.

¶7 Addressing the Senate's separate contention that it did not have custody of the documents maintained by Cyber Ninjas, we reasoned that the Senate defendants have a duty under the PRL to maintain and disclose public records relating to their official duties and that such documents remain public even if possessed by a third party. Id. at *4, ¶¶ 21–23. Disagreeing with the Senate's argument that "the superior court's order would open the files of all government vendors to public inspection," we pointed out that the Senate had "outsourced its important legislative function to Cyber Ninjas," adding that "only documents with a substantial nexus to government activities qualify as public records." Id. at *5, ¶ 24.

¶8 The Senate hired a third party to review and upload a "massive repository of records." The review included searching the personal cell phones of Senator Fann, as well as audit liaisons Ken Bennett and Randy Pullen. The Senate then disclosed about 22,000 records but withheld 422 records on the grounds of legislative privilege and redacted another 272 for the same reason. The Senate also withheld another 402 records based in part on legislative privilege. According to the Senate's privilege log, the emails contain "internal legislative discussions regarding [the] audit," while the text messages refer to "communications re: legislative investigation and audit process."

¶9 American Oversight moved to compel the Senate to produce the withheld records, asserting the Senate was now relying on legislative privilege to hide from public view "virtually every communication" relating to the audit between (1) Senator Fann, Senator Petersen, Bennett, and/or Pullen; and (2) any of those four individuals and anyone associated with Cyber Ninjas or the various contractors conducting the audit. American Oversight argued the Senate failed to meet its burden to show that the legislative privilege applies to the records in its privilege log, contending the Senate (1) provided insufficient information to conclude the audit discussions were "an integral part of the deliberative and communicative processes relating to proposed legislation," and (2) failed to show the communications at issue involve matters that were "necessary to prevent indirect impairment of such deliberations." American Oversight also argued (1) the Senate waived its right to assert the privilege, pointing to repeated public statements about the audit and the public hearing it conducted on the audit report; and (2) alternatively, the court should require the Senate to remedy its "inadequate" privilege log and provide representative samples of withheld documents for in camera review.

¶10 In response, the Senate argued that the audit itself "is a legislative matter within the scope of the privilege." According to the Senate, "courts have long recognized that investigations and other fact-finding inquiries are integral to, and inseparable from, the act of legislating," and thus the privilege includes "the communication or development of purely factual information" relating to those investigations. Addressing the audit's "intrinsic character as a legislative function," the Senate pointed to its power to issue subpoenas to Maricopa County to obtain election materials as well as this court's finding in Fann I that the audit is an "official legislative activity." The Senate therefore asserted that (1) legislative privilege is a constitutional limitation on the PRL, (2) its privilege log was sufficient, and (3) no waiver of the privilege had occurred.

¶11 After oral argument, the superior court explained it would hold in abeyance whether an in camera inspection was necessary and declined to address the sufficiency of the privilege log. Addressing the merits, the court found that the Senate cannot assert the legislative privilege because: (1) communications about the audit are not an integral part of the deliberative process regarding proposed legislation; (2) disclosure of documents with a substantial nexus to the audit would not impair the deliberative legislative process; and (3) factual communications relating to procedures, protocols, practices, findings, or conclusions relating to the audit are not privileged. Describing the privilege as "qualified," the court further reasoned that American Oversight's interest on behalf of the public substantially outweighs the Senate's interest in non-disclosure. It also determined that even if the legislative privilege applies, the Senate waived it by releasing many public statements, issuing its comprehensive report, and holding the public hearing.

¶12 The Senate filed a petition for special action in this court, challenging the superior court's order granting American Oversight's motion to compel. Special action review is appropriate when there is no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a)....