The Arizona Court of Appeals rejected a request from Cyber Ninjas, the company that audited Maricopa County’s ballots, to block a public records request by the media for records from the audit. Phoenix Newspapers Inc., which owns The Arizona Republic, asked for emails and other documents in its April request, which the lower trial court granted. Cyber Ninjas appealed the decision. The appellate court rejected the cyberfirm’s argument that opening its records up for public inspection would allow opening the records of any contractor that does business with the state.

Dennis Wilenchik, Cyber Ninja’s attorney (pictured above), expressed his disappointment to Capitol Media Services, “The government cannot force private contractors to produce things the government does not own. He said it’s similar to a violation of the Fourth Amendment protections against search and seizure.

In a letter to the Arizona Senate’s legal counsel last September, Wilenchik said Cyber Ninjas had already turned over everything from the audit except images of the ballots, photographs of voting equipment, and videos of ballot counting — that could create security problems if shared. Whereas staffing records, internal communications, and communications with subcontractors, are private records, he said. Cyber Ninjas turned over 300 emails to the Senate.

The Arizona Senate, which was also named in the lawsuit, took the position that Cyber Ninjas was not required to turn over the documents under Arizona’s public records law. The court noted in its opinion that it had previously ruled that the Senate must obtain the documents from Cyber Ninjas and release them to a left-leaning watchdog organization, American Oversight. If Cyber Ninjas had turned over the records to the Senate previously, it would not be a party to this second case.

After the Arizona Supreme Court refused to accept an appeal from the previous case, Cyber Ninjas turned over some records to Phoenix Newspapers. These included financial statements concerning the audit, communications with the Senate, and updated policies and procedures used by subcontractors.

Phoenix Newspapers argued that Cyber Ninjas is an “officer” of the Senate or a “public body” as described by Arizona’s public records law. The appeals court disagreed. However, the judges decided that Cyber Ninjas is the sole “custodian” of documents under the statute. They explained, “joinder of Cyber Ninjas is necessary only because the Senate does not have the public records that are in Cyber Ninjas’ custody.”

The appeals court cited a case from North Dakota, Forum Publishing Co. v. City of Fargo, where a publishing company won its suit requesting records from a contractor, PDI, that had been hired by the city to find a new chief of police. The North Dakota Supreme Court held, “We do not believe the open-record law can be circumvented by the delegation of a public duty to a third party, and these documents are not any less a public record simply because they were in possession of PDI.”

The Arizona appellate judges said the decision wouldn’t open up all records from state contractors for public inspection. “Only documents with a substantial nexus to government activities qualify as public records,” they stated, citing Lake v. City of Phoenix. The opinion attempted to distinguish between “ordinary” contractors and those that the Senate has delegated “its oversight authority, an important legislative function.”

However, Wilenchik said “substantial nexus” is not well-defined, and it would be a massive burden for Cyber Ninjas to look through all of their documentation and try to figure out what is. In a previous court filing, Willenchik said there were over 60,000 documents the company would need to review. He also argued, “The court’s claim that Cyber Ninjas is not an ‘ordinary’ contractor is legally indefensible and without any genuine basis in law.”

The court ended its opinion stating that “the Senate and Cyber Ninjas may confer about which public records in the possession, custody, or control of either party should be withheld based on a purported privilege or for any other legal reason.”

The Arizona Senate has already released tens of thousands of records regarding the audit. The court granted Phoenix Newspapers its request for attorneys’ fees and costs. Cyber Ninjas intends to appeal to the Arizona Supreme Court.

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Rachel Alexander is a reporter at the Arizona Sun Times and The Star News NetworkFollow Rachel on Twitter. Email tips to [email protected].
Photo “Dennis Wilenchik” by Dennis Wilenchik and photo “Arizona courthouse” by Tony Webster CC BY-SA 2.0.