Arizona Court Of Appeals Strikes Down County’s Lawsuit Against Records Requesters

In a unanimous decision issued on October 20, the Arizona Court of Appeals, Division Two, affirmed the dismissal of Santa Cruz County v. AUDIT USA & John R. Brakey in a ruling that the County’s preemptive lawsuit was non-justiciable.

This is a victory for transparency as the Appeals Court ruled that governments cannot sue citizens for asking questions. AUDIT USA celebrates a major win for open government.

The Court found that “the County’s declaratory judgment action states no ‘adverse claim’ against AUDIT USA” and sought “a premature judgment or opinion on a situation that may never occur.” The decision reaffirms that public bodies cannot sue citizens simply for requesting records — doing so would chill the public’s right to know.

This marks a significant victory for public-records requesters and election-transparency advocates statewide.

The Court emphasized that allowing governments to sue requestors “would burden a requester’s statutory right to seek public records… [and] could frustrate” Arizona’s commitment to open government. The panel further noted that it is not the role of the courts to give advisory opinions and if officials want guidance, they should request an advisory opinion from the Attorney General — not file a lawsuit.

Brief History of the Case

In response to a public records request made on July 28, 2022 asking for election records from the August 2 Primary Election, Santa Cruz County sent a letter to AUDIT USA on August 11 promising to provide the requested records on August 18. Instead of providing those records, however, the county sued AUDIT USA and its director, John Brakey, on August 18th – the same day it had promised to provide the records, asking the court for a declaratory judgment as to whether Cast Vote Records are available to the public under Arizona statute 16- 625.

The county’s lawsuit was unprecedented – Arizona law allows a requester to sue an agency if records are not provided, but nowhere in Arizona law does it allow a public agency to sue someone for merely requesting a record from that agency. The county’s actions dragged AUDIT USA, John Brakey, and AUDIT USA’s attorney, Bill Risner, into a protracted 3-year lawsuit that the county never should have filed in the first place.

The county lost in Superior Court but appealed to the Arizona Court of Appeals when John Brakey asked for the CVRs a second time. The Appeals Court sent it back to the Superior Court judge, who upheld his initial ruling in favor of AUDIT USA. The county appealed the second Superior Court ruling, which resulted in the Appeals Court decision just issued, affirming the second opinion of the Superior Court judge on the side of AUDIT USA.

While celebrating this important win, AUDIT USA notes several concerns requiring possible clarification by the Arizona Supreme Court:

1. The Court did not definitively rule that counties are barred from suing records requestors, leaving the door open for future abuse.
2. The opinion states that the County did not act in bad faith, “particularly” because of a 2023 Maricopa case involving the denial of Cast Vote Records (CVRs) – but that case, AUDIT-USA v. Maricopa County, 254 Ariz. 536, ¶ 7 (App. 2023) had nothing to do with CVRs, only with ballot images. This means that the court based its belief that Santa Cruz County acted in good faith on the court’s misunderstanding of the Maricopa lawsuit.
3. The Court denied additional attorney fees to AUDIT USA, despite the fact that the original award of $20,000 was made by the Superior Court in the first year of the lawsuit. Without additional compensation, this means that AUDIT USA’s attorney, Bill Risner, worked for two additional years without pay on a lawsuit that AUDIT USA did not initiate and did not want.
4. AUDIT USA has a list of ways that the county and Pierce Coleman have acted in bad faith that the court is unaware of or did not recognize.

Despite these unresolved points, AUDIT USA prevailed on all central issues. The organization is reviewing its options — including a possible petition to the Arizona Supreme Court — to ensure the record is corrected and accountability upheld. There is a great deal of evidence of bad faith on the part of Santa Cruz County and its private attorneys that has not yet been addressed, and AUDIT USA will be asking for compensatory damages as well as the legal fees rightfully earned by Attorney Risner if it decides to proceed to the Arizona Supreme Court.

“When the government asks the courts to preemptively silence a records requestor, it doesn’t protect the public — it protects the public body,” Ken Bennett, former Arizona Secretary of State and current Chair of AUDIT USA. “This decision reaffirms the right of every Arizonan to transparently scrutinize their government,” Ken Bennett, former Arizona Secretary of State and current Chair of AUDIT USA.