PHOENIX — Saying there is no reason for further review, a judge has thrown out the last bid by an organization to unearth texts between state utility regulator Bob Stump and others.
Maricopa County Superior Court Judge Randall Warner acknowledged that an examination of Stump’s phone by an expert hired by the Attorney General’s Office did not produce the documents that Dan Barr, attorney for the Checks and Balances Project, contends are there. And he did not dispute the contention that the organization may have an expert who could recover more of the deleted texts.
But Warner, in a ruling released Tuesday, said all that’s legally irrelevant.
“The legal standard is that a custodian must make a good faith search,” the judge wrote. And he said the burden is on whoever has the phone to show it “adequately” searched for the records sought.
“Based on the evidence submitted, the court concludes as a matter of law that the attorney general’s forensic examination of the phone was an adequate search,” Warner wrote.
But Scott Peterson, the group’s executive director, said the ruling, the second by Warner denying further review of Stump’s phone, may not be the last word and that an appeal is possible.
“The judge overlooked what we believe is compelling evidence,” he said. That includes a contention that there is other data available in the phone, information a better examination could uncover.
Peterson has said he wants the texts to determine if there was any improper activity by Stump to steer “dark money” into last year’s Corporation Commission race.
Stump said he was not surprised by the possibility of an appeal.
“I suspect they’ll invest yet another cockeyed excuse to push on and keep suing me because they wish nothing more than to seize my phone and publish my personal texts,” he said in a statement.
“This is Dan Barr’s witch hunt,” Stump continued. “He should be embarrassed and ashamed for abusing the legal system in this manner.”
But Barr said the evidence suggests there is more information to be had. He said just the circumstances that have created the barriers to getting the texts merit a deeper review.
“Here you have a public official who did everything in his power to evade the public records law,” Barr said. That includes Stump’s admission he routinely deleted text messages from his state-issued phone and that he later threw away that phone without approval of the Arizona Corporation Commission.
Then there’s the log of texts — essentially a list without content — which showed about 3,600 messages between Stump and others, including 2014 candidates for the commission, their campaign manager, the head of a group using anonymous cash to get them elected and a utility executive.
With Stump’s original phone gone, what was examined is a new phone Stump was issued in a bid to see what might have transferred from the old device.
Warner said he reviewed several hundred deleted texts that the expert hired by the attorney general did recover. But the judge said only 36 fell within the dates sought by Peterson. And all 36, he said, came up empty.
Everything else Warner said he saw were either personal matters or protected by attorney-client privilege and therefore not public.
Barr said other electronic footprints suggest more texts can be recovered. And he disputed Warner’s findings that the fact that the attorney general’s expert could not find them should end the matter.
He said Checks and Balances was willing to foot the entire bill for a more thorough review of the phone and even sign an agreement that its expert would keep what he found secret from everyone but the judge.
“As a practical matter there wasn’t any reason for the court to say ‘no’ to that,” Barr said. Peterson has 30 days to decide whether to file an appeal.
Stump himself was not up for election in 2014 when the texts were being exchanged.
But he was openly backing Tom Forese and Doug Little in the Republican primary over two other Republicans who were running as solar advocates. There were messages between Stump and the candidates as well as their campaign manager.
Forese and Little won the primary and went on to defeat Democrat challengers.
Of particular note in that election is that outside groups that will not disclose their donors spent more than $3.2 million to get Little and Forese elected. There were messages between Stump and Scot Mussi, who headed one of those groups, as well as with Barbara Lockwood, an executive of Arizona Public Service, which has refused to confirm or deny it funneled money into the race.
Stump said the texts were for things like setting up meetings but not to conduct commission business.
The question of deleted texts should not arise in the future. Jodi Jerich, the commission’s executive director, said she has since installed software that will create backups of any texts from commission-issued phones.
