Arizona Senate President Karen Fann's Attorney: The Public Has No Right To Know Who's Paying For The Maricopa County Ballot Audit

By Jill Ryan
Howard Fischer, Capitol Media Services
Published: Thursday, July 8, 2021 - 8:05am
Updated: Thursday, July 8, 2021 - 2:18pm

Maricopa County ballots from the 2020 general election are examined and recounted by contractors
Michael Meister/Arizona Republic/Pool
Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona senate at the Veterans Memorial Coliseum in Phoenix on May 13, 2021.

On Wednesday, the attorney for Senate President Karen Fann told Maricopa County Superior Court Judge Michael Kemp that the public has no right to know who is paying for the audit of the 2020 election the Senate is conducting.

However, Kemp questioned the attorney’s arguments. 

"Isn't the public entitled to know who is paying for this, what President Fann referred to as [a] constitutional and legislative function, this important constitutional duty? Isn't the public entitled to know who's paying for this?" Kemp said.

→ Ken Bennett: 'I Hope' Voters Know Who's Paying For Senate Audit Of Maricopa County Ballots

The Senate already has released many of the records related to the audit, including the contract Fann executed with Cyber Ninjas.

American Oversight, which describes itself as a nonpartisan watchdog group, seeks everything else that the contractor has obtained or produced while it has been conducted the audit. It also demands anything in the hands of former Secretary of State Ken Bennett who was named by Fann as her liaison with Cyber Ninjas.

Doug Logan and Ken Bennett
Ben Giles/KJZZ
Doug Logan (left), CEO of Cyber Ninjas, and Ken Bennett (center) at the audit site at Veterans Memorial Coliseum in Phoenix on April 22, 2021.

That includes communications between Cyber Ninja representatives and individual senators. But the lawsuit also seeks other communications that the contractor has been having with outside third parties about the audit.

The attorney for Fann, Kory Langhofer, says there's nothing else for the Senate to produce under the public records law about the audit because the rest is in the hands of the third party, Cyber Ninjas. He further claims the law requires public agencies to produce only the records within their "physical custody.''

But attorney Keith Beauchamp, representing American Oversight, says nothing in the law refers to "physical custody.'' Even the judge pointed out that Langhofer’s argument could be used as an “escape hatch.”

"Couldn't public entities always hide behind this and say, 'Well, we've hired a third-party vendor, therefore you can't have any of the records'?'' Kemp said, noting it is common for governments to contract out certain functions and services. "Wouldn't this always give them an escape hatch not to comply with the public records law?''

Langhofer said that might be true if there was some evidence that the contract was executed specifically to shield records from view.

"There's no such allegation here,'' he said. And Langhofer said the fact remains that any records created by Cyber Ninjas are not in the possession of Fann or the Senate.

Kemp expects to rule within two weeks.