A judge dismissed a lawsuit on Monday while rebuffing the justification Santa Cruz County provided for suing an election integrity organization that had lawfully submitted public records request.
Judge Casey McGinley of the Pima County Superior Court dismissed the unprecedented lawsuit filed in August by the Pierce Coleman PLCC law firm on behalf of Santa Cruz County. The filing was seen by advocates of government transparency as an attempt dissuade the public from seeking records related to elections operations.
“To allow Santa Cruz to successfully sue a citizen requestor simply for requesting a public record would turn the entire concept of public records on its head,” said attorney Bill Risner who represented defendants John Brakey and AUDIT USA. “It would have a chilling effect on the public’s willingness and ability to even ask for government records, much less obtain them.”
Brakey is the co-founder of AUDIT USA, a Tucson-based 501(c)(3) organization. Back in July, Brakey submitted a detailed public records request to Alma Schultz, the Santa Cruz County Elections Director. The county released some of the records and promised others would be provided after the county completed its 2022 Primary Election duties in mid-August.
But Santa Cruz County’s privately retained attorneys sued Brakey on the very day the county had promised it would turn over more records. The litigation was necessary, the attorneys argued to McGinley, due to what county officials considered a “dispute” over whether some of the records were confidential.
The only problem is that no one from Santa Cruz County bothered to notify Brakey of the change in plans. Nor did the county provide written justification for why it believed the withheld records are confidential.
“This case is all theater and not the result of consideration of legal issues resulting in an
impasse needing this courts determination,” Risner argued in a motion to dismiss the lawsuit. “The plaintiffs have additionally requested attorney fees from John Brakey personally and AUDIT-USA who are designated as Defendants but who have neither sued nor threatened to sue them.”
During Monday’s hearing on the motion to dismiss, McGinley questioned why the litigation was initiated in Pima County for a dispute stemming from Santa Cruz County. He also focused on why a lawsuit was filed in the first place, given that public records law is written for handling disputes arising from a denial of a records request.
“It seems to the Court that the proper procedure here would be the county decides whether they’ll provide it or not, and if the public member is dissatisfied with that response they get to decide whether to file a lawsuit,” McGinley stated. “And if they do, they file it in Santa Cruz County because that’s where they filed their public records request and they have a right to have the matter heard there.”
McGinley also questioned whether Santa Cruz County went “outside the bounds of what the public records request law allows” by filing the lawsuit. County officials could have simply issued a denial of the election-related public records request “and face any consequences that may come, assuming consequences come” from that decision, McGinley noted.
However, one of the privately retained attorneys for Santa Cruz County argued that officials believe Brakey and AUDIT USA will continue trying to get access to the records.
“It is their mission,” Christina Estes-Werther argued to McGinley about AUDIT USA. She added that county officials feel they “have a target on their back” that will eventually lead to a lawsuit against Santa Cruz County over access to some elections records.
“For the county, it’s not really a matter of if, it’s when,” Estes-Werther argued.
It was an argument that clearly caused McGinley concern.
“What’s to stop a county from deciding that they’re going to sue a private entity whether it’s a person or a group of people for fear that one day that person might seek a public records request that (the county) don’t want to provide?” the judge asked.
MORE ABOUT THE CASE:
Santa Cruz County Officials Accused Of Trying To Dissuade Election Records Requests