Cyber Ninjas fights Arizona audit public records demands

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- In this May 6, 2021 file photo, Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors working for Florida-based company, Cyber Ninjas AP Photo/Matt York, Pool)

Two Maricopa County judges are growing increasingly frustrated that a cybersecurity consultant working for the Arizona Senate has not provided records related to its review of the 2020 election for release under the state’s public records law.

One judge said last week that Cyber Ninjas, the Florida-based firm that led the Senate’s ballot review, is “playing with fire.” Another on Tuesday scheduled a contempt hearing to decide whether to fine the Senate, jail its Republican leader, or otherwise sanction it for not doing enough to force Cyber Ninjas to turn over records.

Cyber Ninjas, for its part, says its files are its own private property and not subject to the public records law, though the courts have repeatedly disagreed.

The dispute stems from two public records lawsuits filed during the unprecedented partisan review of the 2020 vote count, one filed by the parent of The Arizona Republic and the other by American Oversight, a Washington-based watchdog group.

Judges in both cases ruled that documents related to the audit are public records under state transparency laws, even those maintained by private companies like Cyber Ninjas and other Senate contractors because they were performing a core government function. The Arizona Court of Appeals upheld that finding in the Republic case, and the Supreme Court declined to consider an appeal.

With Cyber Ninjas defiant, judges in both cases are considering how to ensure the records get released.

Judge John Hannah, who is overseeing the Republic case, blasted the Cyber Ninjas for continuing to claim that its records are not public and failing to begin sifting through them to give the Senate any that have a substantial nexus to the audit, as ordered by the appeals court.

“The Ninjas are playing with fire,” Hannah wrote. He declined the Republic’s request to fine Cyber Ninjas $1,000 per day for non-compliance, saying the appeals court has to enforce its own ruling. But he said he would not allow delays if it lands back in his courtroom: “Pleas for more time will fall on deaf ears.”

Meanwhile, Judge Michael Kemp, who is handling the American Oversight case, this week scheduled a hearing for December 2 to decide whether to hold the Senate in contempt. American Oversight did not sue Cyber Ninjas, so Kemp can’t order the company to do anything. Instead, he’s ordered the Senate to obtain relevant records from the firm to comply with the watchdog group’s public records request.

A lawyer for American Oversight, Keith Beauchamp, argued the Senate has not done everything in its power to obtain compliance from Cyber Ninjas. He suggested suing Cyber Ninjas, getting a court order that could be enforced by the sheriff’s office, making a referral to the attorney general, or demanding the firm repay the $50,000 it has been paid by the Senate for its work.

He said if the judge finds the Senate hasn’t done enough, he could issue fines, require jail time or require the Senate to post a bond.

Senate attorney Kory Langhofer said Senate President Karen Fann has tried to get records from Cyber Ninjas, but the court can’t punish the Legislature for failing to file a lawsuit.

“This is ridiculous,” Langhofer told the judge Tuesday. “The problem is Cyber Ninjas, not Karen Fann … Karen Fann can’t snap her finger and get these documents.”

The Senate has written a letter demanding Cyber Ninjas turn over records and last week notified the firm that it is in violation of its contract, which requires both parties to provide “reasonable cooperation” if one party is sued.

“Only documents that the government owns may be considered public records,” Cyber Ninjas CEO Doug Logan wrote in response, espousing a legal interpretation the courts have rejected. “You do not own our company’s records.”

Logan disputes that his contract requires him to comply with public records requests. His lawyer, Jack Wilenchik, argues it would be a massive burden to expect Cyber Ninjas to sift through all its records to determine which have a “substantial nexus” to the audit, a term he says is not well-defined.

Also at issue is the Senate’s claim that lawmakers are entitled to keep some records secret under legislative privilege, saying lawmakers can’t engage in free-wheeling debate about public policy if they’re worried their emails and text messages will later become public.

Hannah has reviewed a handful of documents that the Senate claimed were privileged, agreeing that some could be withheld, but others must be disclosed. Where to draw the line on legislative privilege is likely to be decided by the appeals courts, which have not yet weighed in on that question.

Cyber Ninjas has released some documents but maintains it is doing so voluntarily. Among them is a financial statement suggesting the ballot review cost nearly $9 million, far more than was previously known. That includes $5.2 million for salaries, $1.2 million in “depreciation expense,” and $544,000 in travel expenses.

Cyber Ninjas received $5.7 million from political groups led by Donald Trump allies who have aggressively promoted the former president’s false claims that the election was stolen from him, along with $1 million paid by donors directly to subcontractors. Altogether, Cyber Ninjas reported a net loss of more than $2 million from the audit.

The Senate agreed to pay Cyber Ninjas $150,000 for its work but has so far paid a third of the money.

Republished with the permission of the Associated Press.