NEW: AZ State Senate Will Release More About the Election "Audit", But Moves To Dismiss Public Records Lawsuit That Would Require Cyber Ninjas' (and Subvendors') Correspondence (READ Motion)

Two weeks ago, American Oversight released a trove of emails from Arizona State Senate President Karen Fann related to the ongoing election recount/"audit". Fann's attorneys tell Arizona's Law today that more records will be turned over "in coming days". However, they have filed a Motion to Dismiss the public records lawsuit, claiming there is no reason to turn over anything possessed by Cyber Ninjas or their subvendors. 

Oral argument on the case* has been set for July 7. The Motion to Dismiss was filed last week, which means it is unlikely to be before Superior Court Judge Michael Kemp before then.

The Motion to Dismiss (filed by attorneys Kory Langhofer and Tom Basile) lays out a strong argument as to why public records requests should not apply to the contractors hired by the state.  

Condensed to its essence, the Plaintiff’s argument appears to be that because the Audit is a governmental function, the Disputed Records are “public records” that presumptively must be disclosed, absent some particular claim of privilege, confidentiality, or undue burden. This paralogism, however, evinces a misunderstanding of the PRA. The statute does not secure some disembodied “right” by any person to obtain any document that may be a “public record”—regardless of where or with whom it may be found. Rather, the PRA obligates two delimited classes of individuals and entities—to wit, “officers” and “public bodies”—to preserve and make available their “public records.” It is at this interpretive juncture that the Plaintiff’s claims dissipate; Cyber Ninjas and its subvendors are not “officers” or “public bodies,” and hence the Disputed Records are not governed by the PRA.

They then try to turn the tables on American Oversight and its supporters, noting that if Cyber Ninjas' internal documents are subject to public records requests, so too would Dominion's and Runbeck's - the providers of the voting machines and systems used in November's election.

American Oversight's initial Complaint obviously anticipated the (key) contractors defense, including its own presentation of case law to support the release of documents in Cyber Ninjas' possession. (Such detailed legal argument is somewhat unusual for a Complaint.)

*In a public records lawsuit, the Order to Show Cause is, for all intents and purposes, the case.

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