Fann v. Kemp, No. Cv-22-0018-PR (August 31, 2022) (J. Lopez)
American Oversight, a nonprofit which advocates for government transparency made a public records request on the state to produce records pertaining to the election audit performed by Cyber Ninjas at the direction of the Arizona Senate President. She declined to produce the records and a lawsuit was filed by American Oversight. The case has been up and down to the court of appeals twice with orders to produce the records on a finding that the legislative privilege only applies to activity by the state legislature related to legislation. Many records were then produced. American Oversight sought more. The Arizona Court of Appeals agreed but the Arizona Supreme Court, in this special action, did not. Trial court was reversed and remanded with instructions and the court of appeals decision was vacated.
Legislative privilege is a constitutional privileged emanating from legislative immunity. It extends to any activity conducted by the legislature within its jurisdiction to including investigations and audits of an election. The legislature has the power to enact election laws and although the Secretary of State administers the election, the state through its legislature has the authority to perform investigations intended to preserve the integrity of elections and to enact laws to assure that elections are fair and honest. Administrative and political communications however, are not privileged. Nor would be actions taken by a legislator affecting a personal matter.