Call it another victory for democracy.
I am not a lawyer and don’t pretend to be able to follow the logic, and it’s too late for me to untangle it all, but this article caught my eye and hasn’t been mentioned here yet.
The short version of the story so far is: Arizona “Fraudit” being run by Cyber Ninjas, who want to keep their practices secret. Phoenix Papers has sued to discover what public records are being held, and the Cyber Ninjas claim that they don’t have the power to do this. A judge ruled against the Ninjas today.
Maricopa County Superior Court Judge John Hannah rebuffed a claim by Cyber Ninjas that it cannot be sued under the state’s public records law.
Attorneys for the company argued that such demands can be made only of what are traditionally considered public officials and agencies. But Hannah, in a sometimes strongly worded decision, said that’s just not how the law works in Arizona.
The ruling potentially paves the way for individuals to file demands for production of documents from other private companies on the premise that they are holding public records.
At issue are tens of thousands of documents, emails, texts and other communications that Cyber Ninjas has not yet produced in response to a public records request by Phoenix Newspapers, parent company of The Arizona Republic. That is even after Hannah told the company that the records it has related to the audit are public, ordered it to preserve the records, and then, after the Supreme Court ruled in a parallel case, disclose them within three days, which has expired.
And here’s where “corporations are persons” whammy comes in.
[Cyber Ninjas attorney] Jack Wilenchik filed pleadings saying there is “zero legal authority” to order Cyber Ninjas to respond directly to a public records request. And, if nothing else, he argued that forcing the company to respond to the public denies the Senate, to which he said the records really belong, the ability to decide “the timing, manner, and form of the production of its own public records.”
Hannah, however, said that ignores a couple of facts. “Under the unique circumstances of this case the Ninjas are a ‘public officer’ within the plain meaning of the public records law,” he wrote.
He said “officer” means any person appointed to hold any office of a public body along with a chief administrative officer, head, director, superintendent of chairman of any public body. And “public body” means any public organization or agency supported with state funds or spending state dollars.
“The Ninjas have been ‘appointed’ by the Senate as the ‘head’ of the ‘public organization’ conducting what the Ninjas describe as an ‘ongoing investigation of how Maricopa County conducted the 2020 election,”’ the judge wrote.
The Senate is at least partly funding the audit with public money, “which makes the organization a ‘public body’ for purposes of the statute,” he added.
And since Arizona law defines “corporations” as “persons,” that makes the company and “officer” — along with the Senate — responsible for maintaining and disclosing public records, the judge said.
“It follows that Phoenix Newspapers may file an action against the Ninjas … appealing the denial of PNI’s request for audit-related public records,” Hannah said.
Hannah stressed that his order still allows the Senate to seek to withhold specific records based on exceptions to the public records law such as attorney-client privilege.
“But procedural problems created by multiple record holders are not a reason to compromise the public’s right to know what its government is up to,” he said.