A Maricopa County judge will hear Thursday from attorneys for Senate President Karen Fann and the full Arizona Senate about a lawsuit filed last week by a Washington D.C. nonprofit that seeks the release of records pertaining to the Senate’s ongoing audit of Maricopa County’s 2020 General Election.
On May 20, American Oversight filed a complaint in Maricopa County Superior Court seeking a court order compelling the Senate defendants to turn over several audit-related documents in the possession of the audit team. Judge Michael Kemp will preside over a show cause hearing Thursday during which the Senate defendants can present arguments why the order should not be granted.
There has been no formal response from the Senate about the lawsuit, although Senate Audit Liaison Ken Bennett confirmed on May 21 that he had been in contact with the Senate’s attorneys and “we are preparing what we think is an appropriate response to their request.”
American Oversight describes itself as a non-partisan, nonprofit ethics watchdog that uses public records requests backed by litigation “to expose official misconduct, threats to democracy, and abuses of power at all levels of government.” Its attorneys, who have been involved in other election-related litigation in Arizona, contend the Senate’s position would vitiate Arizona Revised Statute 39-121, the state’s public records law.
The group’s ARS 39-121 requests include records “that have been created, sent, and received by the Senate Defendants’ agents” in connection to the audit, including records related to planning, procedures, costs, and payments. The public’s right to see those records “is significant and immediate,” according to its lawsuit.
Sen. Warren Petersen is also named as a defendant in the lawsuit in his official capacity as the chairmen of the Senate Judiciary Committee. He and Fann signed the legislative subpoena in January which led to the current election audit.
According to the lawsuit, American Oversight submitted multiple records requests to the Senate in April. On May 14, the Senate’s public records attorney, Norm Moore, released several documents in response to the requests but noted the Senate “does not have in its possession, custody or control” of the rest of the requested documents.
Those records are reportedly in the possession, custody, and control of Bennett, audit general contractor Cyber Ninjas, or various others performing work for the Senate’s audit. The legal issue for Kemp is whether those engaged in the audit on behalf of the Senate fall under the state’s public records law.