Cyber ​​Ninjas flout court order refuse to hand over public records to Senate


Cyber ​​Ninjas will not hand over all of the documents that Senate Speaker Karen Fann requested during the review she conducted of the 2020 elections in Maricopa County, despite a Arizona Court of Appeals Order that all these files be made public.

Attorney Jack Wilenchik, who represents the Florida-based company that led the Fann-ordered election review, argued to Senate attorney that staffing records and internal communications are not public records, and stated that Cyber ​​Ninjas would not hand them over as Senate Speaker. demand.

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The company will provide “full financial statements” on the audit, either as part of the report to be released on September 24 or shortly thereafter, Wilenchik wrote in an email to Senate Prosecutor Kory Langhofer on Friday. And it will provide its communications with the Senate, which have not been made public, and any updated policies and procedures that its contractors used during the audit.

But staffing records, along with internal communications and communications with contractors, are private records, Wilenchik wrote. For example, Wilenchik said it would not be “practical, feasible, fair or legal” for the company to be required to deliver internal company emails about staffing and execution by Cyber ​​Ninjas from his contract with the Senate.

“Otherwise, it would set an extremely disturbing precedent for all contractors in the government of this state and prevent the state from doing business,” Wilenchik wrote.

Further, Wilenchik said that Fann’s request for any documents that have “a substantial connection to the audit” – a phrase the Arizona Court of Appeals used to describe documents the Senate must obtain. and making public under the State Public Archives Act – is vague and difficult to define.

The Senate is responsible for its contractors and subcontractors. They can and should and should obtain these documents. The law on public archives requires it.

– Lawyer Roopali Desai

Fann’s demand for “all records which are reasonably necessary or appropriate to maintain accurate knowledge” of the audit is also undefined, Wilenchik wrote, but Cyber ​​Ninjas believes the Senate already has them all. the records he needs. He noted that the Senate had several liaison officers who observed audit operations on a daily basis and that election review activities were broadcast live on the Internet at all times.

“I also underline that, although the CNI intends to produce documents out of good will and by commitment of transparency, by sending this communication, the CNI does not admit the existence or the scope of an involuntary legal obligation to do so, “Wilenchik wrote in the email, referring to Cyber ​​Ninjas, Inc.

Cyber ​​Ninjas will likely not have the final say on whether their obligation to hand over the discs is unintentional. The Court of Appeal ruled that the Senate must acquire and make public all documents having a “substantial connection” to the audit, whether or not these documents are held exclusively by private contractors. The contract Cyber ​​Ninjas signed with Fann in March requires the company to provide “information or documents” that it requests in order to settle legal claims.

Roopali Desai, an attorney representing American Oversight, the liberal nonprofit group that sued the Senate over the files, said it was the Senate’s responsibility to obtain the Cyber ​​Ninjas documents.

“Our view is that the defendant in our case is the Senate. They are responsible for their contractors and subcontractors. They can and should and should obtain these documents. The law on public archives requires it. They have independent subpoena power. They have contractual rights. There are many different ways to hold their contractors accountable, ”Desai told the Arizona mirror.

If Cyber ​​Ninjas is to continue the fight in court, it looks like the company will be on its own and have no assistance from the Senate, which has fought the legal battle against American Oversight for months.

In a letter to Wilenchik on Friday, Langhofer said Cyber ​​Ninjas’ refusal to hand over certain documents jeopardizes the Senate’s ability to comply with the Court of Appeal’s order, and any decision by the company not to complying with Fann’s request for documents would be “prejudicial to the legal interests of the Senate and its agents.”

“The Senate will not support or advance any legal claim, defense or position adopted by the CNI which would have the effect of limiting or delaying the CNI’s compliance with the Senate’s request of September 14,” Langhofer told Wilenchik.

Langhofer briefed the judges in legal proceedings brought by American Oversight and the parent company of The Republic of Arizona that “the interests of the Senate and Cyber ​​Ninjas have diverged on this issue.”

Cyber ​​Ninjas has so far produced four documents in response to the Senate request, Langhofer said. These records relate to training, ballot counting policies, tally sheets and documents detailing the chain of custody of these sheets.

Wilenchik also indicated that the documents Cyber ​​Ninjas is willing to hand over could be delayed by Logan’s work on the long-delayed audit report, which he will present to the Senate on September 24.

Fann requested a document cache Cyber ​​Ninjas after Arizona Supreme Court refused to accept his call of the appeals court ruling that documents in possession of contractors hired to conduct a review of the 2020 general election in Maricopa County

The Senate’s fight for public records is not over, either. The Senate turned over tens of thousands of pages of documents in response to the American Oversight lawsuit, but withheld several thousand pages for reasons of legislative privilege. Desai filed a motion on Friday asking Maricopa County Superior Court Judge Michael Kemp to order the release of the documents.

About Charles D. Goolsby

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