PHOENIX β State lawmakers are entitled to shield records from public disclosure if they deal in any way with legislative business, the Arizona Supreme Court ruled Wednesday.
In a unanimous decision, the justices overturned lower court rulings that only documents, emails and texts related to proposed new laws can legally be kept from public view. Instead, the high court said βlegislative privilegeββ extends to βany other matters placed within the jurisdiction of the legislatureβ β including a decision to launch an investigation.
The court said that provides a broader, though not absolute, right to keep more records secret.
Wednesdayβs ruling most immediately affects more than 1,000 records related to the βauditββ of the 2020 election ordered by Senate President Karen Fann. She had argued β and the court has now agreed β that the public is not entitled to see every internal communication among lawmakers about how the review was conducted.
The ruling also sets the stage for lawmakers β as well as city councils and county boards of supervisors β to now claim that same privilege and withhold more records in more circumstances.
In issuing the ruling, Justice John Lopez made clear he and his colleagues were not anxious to get entangled in the dispute over the election audit, calling it a political matter βoutside this courtβs constitutional prerogative.ββ He also said he and his colleagues were being deferential to βthe principles of the separation of powers,ββ saying the court did not want to exercise βundue influenceββ on the work of legislators.
Lopez said it really is up to voters to decide if lawmakers are doing the right thing.
βArizona legislators routinely stand for election and, thus, are accountable to the stateβs electorate who serve as the ultimate arbiters of the wisdom of any legislative action, rather than the courts,ββ he wrote.
Dan Barr, an attorney with the First Amendment Coalition, told Capitol Media Services thereβs a flaw in that logic.
βThe stateβs electorate needs to find out what these people are doingββ in order to exercise that oversight, he said. Barr said Wednesdayβs decision only makes that more difficult.
He also said the court ruled, in essence, it doesnβt matter if the audit had legitimate legislative purposes or was really just a political exercise by the Republican-controlled Senate. In either case, Barr said, the justices were saying it is all protected under the umbrella of other legislative business.
That point was emphasized in a statement by American Oversight, a group that sued to get all records from the Senate and Cyber Ninjas, the private firm hired by Fann, related to the review of the conduct and results of the 2020 election in Maricopa County.
βWhile legislative privilege should protect legitimate functions of the legislature, extending the privilege to activities that the court recognized as uniquely politicized is misguided,ββ said Heather Sawyer, the groupβs executive director. βThis ruling makes it easier for officials to hide the truth about their motives and conduct from the public.ββ
Fann hailed the ruling as βa huge victory for the legislative process.ββ
βWe absolutely believe in transparency,ββ she said in a prepared statement. βHowever, there are times when legislative privilege should be exercised so that we can do the jobs that the people of Arizona elected us to carry out.ββ
American Oversight sued after Fann refused to surrender audit records, claiming legislative immunity.
The Court of Appeals disagreed, resulting in the Senate surrendering about 22,000 records.
But the Senate withheld more than 1,000 others, claiming they were not subject to disclosure and were βinternal legislative discussions regarding the auditββ as well as communications regarding the investigation, the audit process and legislative proposals. That sent the case to the Supreme Court.
Andy Gaona, attorney for American Oversight, argued that only communications among lawmakers about actual proposed legislation is subject to privilege and that the audit was really more administrative or political than legislative.
Lopez, in the 17-page ruling, acknowledged the stateβs public records law is meant to provide access to official records so people can monitor the performance of governmental officials and employees.
But he also said thereβs a constitutional concept of legislative immunity, designed to allow lawmakers to debate issues without fear of being sued. And legislative privilege, Lopez said, is an extension of that.
More to the point, he said lawmakers need not be considering actual legislation for the privilege to apply.
βLegislative investigation is often sufficient to invoke legislative privilege because such inquiries frequently produce formal legislative action,ββ Lopez wrote. βIndeed, curtailment of the privilegeβs scope to communications concerning proposed or pending legislation would discourage wise or effective evaluation of the very necessity of investigation.ββ
And he said the legitimacy of a legislative inquiry is not defined by what it produces or does not produce.
βThe very nature of the investigative function β like any research β is that it takes the searchers up some blind alleys and into nonproductive enterprises,ββ Lopez said. βTo be a valid legislative inquiry, there need be no predictable end result.ββ
Lopez cautioned, however, this is not absolute.
βTo be sure, a legislatorβs act does not warrant privilege merely because it is undertaken in an official capacity,ββ he wrote, saying the shield does not cover political or administrative communications.
The justices sent the case back to the trial judge to review each individual claim of privilege for the more than 1,000 disputed documents, directing him to analyze the explanation of the Senate of why each fits within this definition of privilege. But they said the judge can demand to review the documents himself only if the Senateβs explanation does not make the case for privilege.