“Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona senate at the Veterans Memorial Coliseum in Phoenix, Ariz. on May 28, 2021. || Pool photo
Robert Anglen
Arizona Republic
The Arizona Senate can keep secret emails and texts with contractors who worked on the “audit” of 2020 election results, even if they hadn’t yet been hired when they communicated with legislators.
A judge ruled several specific records are protected by “legislative privilege” and don’t have to be made public under the law.
The privilege extends to e-mails from Cyber Ninjas CEO Doug Logan, the Senate’s lead “audit” contractor, about processes and procedures surrounding the only privately run recount of 2020 ballots in America. Those include discussions of ballot inspection, worker training and quality control issues.
“The Senate contends contractors and consultants are equally protected. This Court agrees with the Senate,” Maricopa County Superior Court Judge Bradley Astrowsky wrote in a July 13 ruling. “Courts in Arizona and elsewhere have affirmed that the privilege shields a legislator’s communications with a third party that is serving as a consultant or advisor in connection with a legislative project.”
Astrowsky’s ruling follows a July 6 hearing on a 2021 public records lawsuit against the Senate and Cyber Ninjas by The Arizona Republic for “audit” records. The Republic sought access to 41 specific records the Senate said should be protected from public inspection.
Astrowsky did not completely side with the Senate. He said communications dealing with administrative decisions surrounding the audit, such as hiring consultants, how much to pay them, and whom to hire, are not protected. “Accordingly, the Senate must turn over these e-mails,” he said.
The case could serve as a benchmark for how much of the public’s business can be conducted in private and the latitude elected leaders have to withhold documents from inspection.
