PHOENIX — The Senate is asking a judge to delay any move to force it to immediately surrender certain election audit documents.
In new court filings, an attorney for the senators, Thomas Basile, said he is convinced an appellate court ultimately will conclude the Senate is entitled to shield about 720 disputed documents from public view.
More immediately, Basile said that if the Senate is forced to surrender the documents now, it won’t matter if it turns out the Supreme Court finds the lower court judge’s ruling was in error. That’s because the documents relating to the 2020 election audit would instantly be opened to inspection by anyone.
“In other words, it is impossible for the Senate to comply with the court’s order but still preserve and maintain any right to meaningful review of its privilege claims,” he told Maricopa County Superior Court Judge Michael Kemp.
Basile noted that even Kemp has said the issue of legislative privilege “will likely be resolved by the higher courts.”
The requested delay is drawing derision from American Oversight, the self-described nonpartisan watchdog group that sued for the documents and, to date, has won in every round.
“Time and time again, the Senate has refused to comply with our public records requests,” the organization said in a Twitter post. “But the law is on our side.”
American Oversight also pointed out that Kemp, in last week’s order that the Senate produce the documents, underlined the importance of prompt action.
“The stakes could not be higher and transparency, which is at the heart of the public records law, substantially outweighs any concern regarding chilling future legislative deliberations,” the judge wrote.
Basile contends Kemp committed several errors. “No Arizona court has ever suggested that the legislative privilege is a qualified one,” Basile wrote.
The Senate’s attorney also said the judge was wrong to conclude the only time lawmakers can claim the privilege to keep documents and communications secret is when they are discussing pending legislation.
“Legislative fact-finding investigations, such as the audit, are themselves an integral part of the deliberative and communicative process because they are necessary antecedents to the task of formulating and debating legislation,” Basile said.
He also disputed Kemp’s finding that the Senate, by having a public hearing to question its consultants about the audit findings, effectively waived any right to claim that the documents behind those findings were confidential. Kemp had called the hearing “more akin to a press conference.”
“The Senate is aware of no authority for the notion that legislators’ questioning of third party witnesses in the Senate chamber is anything other than a legislative function, let alone a ‘political’ act akin to a ‘press conference,’” Basile wrote.
The attorney said he understands American Oversight’s request for “transparency.”
“But the Senate already has made what is likely the largest production of public records in Arizona history,” Basile told Kemp. “The approximately 720 documents that remain withheld solely on legislative privilege grounds equal to only around 3% of the total universe of audit-related public records released to date. And a large number of them already have been produced in redacted form.”
American Oversight says its lawsuit already forced the release of more than 80,000 pages of records, including emails.
Kemp is set to hear arguments related to the case early next month.
