PHOENIX — An organization that won a legal battle with the Senate over audit-related records is now asking a judge to hold Senate President Karen Fann in contempt — and possibly jail her — for failing to comply with the court order.
The organization, American Oversight, points out in new court filings that a judge has twice ordered Fann and the Senate to obtain documents from Cyber Ninjas, the firm Fann hired to conduct the 2020 election audit. And appellate courts declined on Sept. 14 to void the order by Maricopa County Superior Court Judge Michael Kemp.
"Yet defendants still have not produced the documents they were ordered to 'immediately' produce back on Aug. 2," American Oversight's attorney Roopali Desai noted to Kemp, saying the public has the right to see the records.
Cyber Ninjas' excuse, Desai said, is that the request was causing it to "take time away from the completion of its audit report." Even after the audit report is released, she said there are no assurances about when production of the records, and their transfer to the Senate, will begin.
"Cyber Ninjas essentially told the Senate to pound sand," Desai wrote.
She said that flies in the face of the agreement Fann has with the firm, which requires it to cooperate when, as in this case, the Senate has been sued.
But this can't be entirely blamed on Cyber Ninjas, Desai said.
The senators "elected not to instruct their agency to prioritize compliance with this court's order over further work on the audit," she told Kemp. "Defendants' decision to take no action to compel their agent to promptly produce all the records or put pens down on the audit until the transfer of public records was completed was contemptuous."
The Senate released the audit report on Friday, yet Arizonans are being deprived "of their statutory right to see what lies beneath the report," Desai told Kemp.
The kind of contempt citation Desai is seeking could involve more than a financial penalty against Fann and the Senate. She told Capitol Media Services there is an option for jail until the party found guilty "purges" the contempt by complying with the court order.
There was no immediate response from Fann, and Kemp has yet to rule on the contempt issue.
The failure to pursue documents from Cyber Ninjas and its subcontractors is only one of the issues for which Desai wants an order from Kemp.
In separate legal filings, she said the Senate is taking an overly broad view of what is protected by "legislative privilege" and need not be disclosed under the state's public records law.
"Defendants now rely on legislative privilege to shield from public view virtually every communication between or among Sen. Fann, Sen. (Warren) Peterson, Senate Liaison Ken Bennett and/or Senate Liaison Randy Pullen relating to the audit," she told the judge. In fact, Desai said, the Senate wants to shield communications between any of those people "and anyone at Cyber Ninjas or the various subcontractors who are conducting the audit on the other."
That list of withheld documents, she said, includes "virtually every substantive text message and email about the audit." Instead, Desai complained, what the Senate has produced are "many thousands of pages of irrelevant materials," including multiple copies of newspaper articles, generic emails from members of the public commenting on the audit, and multiple copies of already public filings from this and other cases.
"But the documents produced provide no answers to the fundamental question that American Oversight's requests sought public records to answer," she wrote.
For example, the organization wants to know the source of the funds to pay Cyber Ninjas and its subcontractors. The Senate has said it is paying $150,000 but Cyber Ninjas CEO Doug Logan has said he has collected $5.7 million from other sources.
There's also the question of how and why Fann selected Cyber Ninjas, which had no previous election audit experience. "Who participated in that decision and what input did they receive?" Desai asked.
Kemp already has scheduled an Oct. 7 hearing on that complaint.
