State Senate can keep some election ‘audit’ docs secret, Arizona Supreme Court says

By Ryan Randazzo || Arizona Republic

The Arizona Supreme Court said Wednesday that some of the Senate’s documents from the review of the 2020 election can rightfully be shielded from public view, reversing a lower court order.

But to keep those documents private, the Senate needs to provide better explanations of what is in the approximately 1,000 emails, texts and other communications the Senate has fought to keep secret for more than a year.

Both The Arizona Republic and a left-leaning watchdog group called American Oversight sued the Senate for communications from the partisan election review last year. The cases were consolidated.

The Senate turned over many documents as ordered by the Superior Court but argued about 1,000 of them are protected by “legislative privilege” and therefore not subject to disclosure under the state Public Records Law.

The Supreme Court said that is correct, but that the Senate needs to provide more information to justify that protection for the documents in question.

“The audit is a legislative activity within the legislature’s authority, and communications concerning this activity are covered by legislative privilege,” the Supreme Court opinion said. “Consequently, the Senate’s internal communications concerning the authorization, planning, and findings of the audit investigation are privileged.”

Communications can be shielded from public view if they involve official acts of the Legislature, not just crafting laws, the court said.

The Supreme Court also dismissed the reasoning of the Court of Appeals that communications that are political in nature are not protected.

“Despite the unique politicization of the audit, any purported political motive for the legislature’s action in pursuing the audit is irrelevant,” the Supreme Court opinion said.

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