Audit records from Cyber Ninjas to be released following Arizona Supreme Court decision

Ryan Randazzo
Arizona Republic
Cyber Ninjas attorney Bryan Blehm moves a pallet of ballots, July 19, 2021, in the Wesley Bolin Building at the Arizona State Fairgrounds, Phoenix, Arizona.

The Arizona Supreme Court on Tuesday rejected the state Senate's bid to keep records from Cyber Ninjas and other contractors working on the election audit out of public view.

After the decision was announced, Senate President Karen Fann, R-Prescott, said she was preparing to comply with an order from a lower court to release the documents.

The Senate had refused to turn over records from the audit that are in the possession of its contractor, Cyber Ninjas, and other subcontractors, even after two Maricopa County Superior Court judges in separate cases and the Appeals Court all ruled they are public documents.

After the Appeals Court's ruling, the Senate asked the Supreme Court to weigh in. The justices discussed the matter in a private conference Tuesday and decided not to take it up.

The Supreme Court also "dissolved" a stay it had issued that allowed the Senate to continue withholding the records pending the case's outcome. The stay had paused a lower court order for the Senate to produce the records.

Fann said she will confer with her attorney on how to comply.

"What concerns me more is the fact that this ruling could open up a whole new precedent of two private companies having to divulge private communications between themselves and anyone that asks under a (public records) request," Fann said in a text message to The Arizona Republic.

The Senate has yet to share the results of the controversial audit of the 2020 election.

Lawsuit filed by The Arizona Republic:Judge orders Cyber Ninjas to preserve audit records

American Oversight, Republic had sued

A nonprofit group called American Oversight first sued the Senate in May, seeking the documents. The group was founded in part by former Obama administration officials to investigate the Trump administration, and wanted records that could shed light on the unprecedented election audit.

"Arizona law does not allow public servants to outsource democracy and shroud their conduct in secrecy," Austin Evers, executive director of American Oversight, said in a prepared statement after the Supreme Court's decision.

"The Arizona Senate’s legal maneuvering to conceal these records from the public matches the outrageousness of their so-called audit. That ends today. Arizonans can look forward to much-needed transparency, even if it may reveal gross attacks on democracy itself.”

The Republic subsequently filed its own lawsuit seeking records, naming the Cyber Ninjas and the Senate as defendants. Both American Oversight and The Republic initially requested the documents through the Arizona Public Records Law and filed separate lawsuits when the Senate refused to provide the documents.

Separate Maricopa County Superior Court judges in the cases ruled the documents are public records.

In The Republic's case, Judge John Hannah subsequently ordered the Cyber Ninjas to preserve all records to ensure they were not destroyed while the litigation played out.

Fann and the Senate have said they will provide all records in their possession and have placed some emails, texts and other material on a public website in response to both lawsuits.

But an extensive review by The Republic found many thousands of the documents released so far are inconsequential emails, including news clippings and correspondence with people from around the country, most of who support the audit.

The Senate has withheld thousands of records of communications among lawmakers and among and between lawmakers and the audit contractors, claiming they are privileged. The plaintiffs in both cases will have the opportunity to challenge any such withheld records.

Reach reporter Ryan Randazzo at or 602-444-4331. Follow him on Twitter @UtilityReporter.

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