Arizona Senate President Karen Fann (R-Prescott) applauded a decision from the Arizona Supreme Court (ASC) protecting the Senate’s legislative privilege regarding the release of documents related to the 2020 Maricopa County election audit.
“The Senate’s position on legislative privilege was supported by decades of precedent from federal and state courts. The lower courts’ attempt to disregard those precedents in the interest of short-term political concerns was wrong from the beginning. This is a huge victory for the protection of the legislative process,” Fann said.
In 2021, the American Oversight (AO) organization, a nonprofit that advocates for government transparency, submitted requests to the Arizona Senate and Cyber Ninjas to produce records relating to the audit. However, the Senate refused to release most of the documents, prompting AO to file a lawsuit. Lower courts dismissed the Senate’s claim of legislative immunity as a reason to withhold the records. The Senate then disclosed 22,000 documents but submitted a privilege log listing 422 withheld and 272 redacted communications. These communications allegedly included “internal legislative discussions” regarding the audit, legislative proposals, the audit process, and some text messages regarding legislative investigations.
AO moved to compel the Senate to produce the withheld records. The trial court rejected the Senate’s privilege claim, stating that even if the claim applied, the Senate waived the privilege by making public statements about the audit and publishing Cyber Ninja’s report. The Senate then sought special action relief in the court of appeals, which held that the Senate did not meet the burden of showing that all communications in the log were protected and directed it to disclose all records or submit to an in camera (in private) inspection by the trial court to determine if the records are covered. The Senate then sought review from the ASC.
In his opinion, ASC Justice John Lopez outlined that the legislative privilege definition is much wider than what the trial court used. Lopez wrote that the purpose of public record laws is to allow the public to monitor the performance of government officials. However, legislative privilege is a constitutional right that protects “any speech or debate in either House” to guard legislators against fear or intimidation. The privilege also applies to “other matters placed within the jurisdiction of the legislature.” Lopez used this fact to state that any of the Senate’s communications involving potential legislature to come from the audit would fall under this protection.
However, there are limits to what is covered by legislative privilege. Communications of an administrative or political nature are not protected. Yet, Lopez stated that any political motives behind the audit are irrelevant in this case; political motivations only matter for determining if individual communications are protected.
Lopez asserted that communication concerning the audit’s authorization, planning, and findings, which could lead to legislation down the road, would also fall under the privilege umbrella.
Therefore, Lopez reversed the trial court’s order for the Senate to disclose all communications concerning the audit to American Oversight and vacated the court of appeals’ opinion. However, the Senate must disclose any non-legislative communications.
“We absolutely believe in transparency, however, 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,” Fann said.
Attorney Kory Langhofer of Statecraft PLLC told The Arizona Sun Times via email that the matter will return to the trial court to re-evaluate the Senate’s privilege log under the ASC’s guidelines, which may be the final stage of the litigation.
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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Karen Fann” by Gage Skidmore. CC BY-SA 2.0. Background Photo “Arizona Capitol” by Gage Skidmore. CC BY-SA 2.0.