Maricopa County Superior Court Judge John Hannah, who was appointed to the bench by former Gov. Janet Napolitano, ruled that the Arizona Senate must turn over records from the Maricopa County ballot audit to satisfy a public record request from The Arizona Republic. The newspaper and left-wing watchdog American Oversight have been engaged in litigation attempting to get records from the legislature and the contractor that conducted the audit, Cyber Ninjas.
Hannah said that while the legislature may keep conversations about legislation private, under “legislative privilege,” conversations about the audit are excluded. “This is not a confidential process,” Hannah said. “This is a highly, highly public process.” He said there is a legal presumption favoring disclosure which the Senate did not overcome.
However, Hannah said he was putting his ruling on hold to give the Arizona Court of Appeals and possibly the Arizona Supreme Court time to chime in.
Hannah previously ordered the Senate to turn over the documents in question to him for inspection. The documents include a string of text messages between Senate President Karen Fann (R-Prescott) and cybersecurity expert and retired Army Col. Phil Waldron, communications between Cyber Ninjas’ President Doug Logan and Senate liaison Randy Pullen, and draft contracts between the Senate and Cyber Ninjas, including mark-ups by Dr. Shiva Ayyudurai. There were also “inter-chamber communications” between Fann, State Reps. Leo Biasucci (R-Lake Havasu), Mark Finchem (R-Tucson) and State Sen. Sonny Borrelli (R-Prescott) from various stages of the audit.
During the hearing, an attorney for Cyber Ninjas, the main contractor responsible for the audit, said the company is insolvent and unable to pay for attorneys to comply with court orders requiring it to sift through records to determine what must be disclosed. Cyber Ninjas lost over $2 million performing the audit. The firm has turned over numerous records voluntarily.
Cyber Ninjas previously requested a change of judge, citing “a plain bias against the Arizona Republican Party and conservative causes” in a motion for change of judge filed on July 9. Their attorney, Dennis Wilenchik, described Hannah as “prejudiced and intemperate,” noting that he is purportedly a Democrat whose own attorneys are the Democratic law firm Osborn Maledon, which also represents Democratic Secretary of State Katie Hobbs.
Wilenchik went on, “[M]onths before the commencement of this litigation, Hannah had already formed opinions about the ‘wisdom’ and ‘purpose’ of the Senate’s audit — which is the very definition of prejudice by a judicial officer.” The motion was unsuccessful.
The Arizona Senate previously released tens of thousands of documents to American Oversight after being ordered to by previous court rulings, including one by another Napolitano appointee, Judge Michael Kemp. The new ruling will force it to turn over more than 1,000 texts and emails.
American Oversight said it is trying to find out who was funding the audit and how Cyber Ninjas and other contractors conducted the review.
Cyber Ninjas must also turn over its audit records to The Arizona Republic. A trial court’s decision ordering the release was upheld by the Arizona Court of Appeals and Arizona Supreme Court last month. Although Cyber Ninjas is a private entity, the judges decided that Cyber Ninjas is the sole “custodian” of documents under the public records statute.
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