Allowing legislators to keep audit secrets

The high court superordinates a judge-invented legislative privilege over an explicit public records law.

The Arizona Supreme Court has decreed that the people of Arizona are forbidden from receiving a full accounting of Karen Fann’s misbegotten audit of the 2020 presidential election in Maricopa County.

The justices produced that result by superordinating a judge-invented legislative privilege over an explicit statute requiring all public bodies and officers to keep and produce records “reasonably necessary or appropriate to maintain an accurate knowledge of their official activities.”

According to the high court, due to legislative privilege, Fann and the Senate can withhold from a public records request certain documents related to the audit they claim are entitled to it. In fact, if they aren’t sloppy in describing the documents withheld, a judge cannot even review them in camera to render an independent judgment as to whether they indeed qualify for the privilege.   

There is, in the state Constitution, a succinct grant of immunity to legislators: “No member of the legislature shall be liable in any civil or criminal prosecution for words spoken in debate.”

Having to make documents public isn’t the same as subjecting a legislator to civil or criminal prosecution. Nor can a right to keep documents confidential be logically deduced from a grant of immunity from civil or criminal prosecution for words spoken in debate.

Nevertheless, judges, federal and state, have invented such a right, which they have called legislative privilege. 

The judge-invented sphere of confidentiality isn’t comprehensive. It supposedly only extends to truly legislative activities, not to administrative or political ones. In the real world, legislative, administrative, and political activities are fully intertwined. As result, the case law on when legislative privilege exists is a confused muddle. 

Now, I am not an open government zealot. A reasonable argument can be made that a sphere of confidentiality can produce better governance.

However, that is not the legal structure that Arizona has adopted. Our public records law, cited above, does not grant such a sphere of confidentiality. In fact, just the opposite. All public bodies and officials, including the legislature and legislators, are required to document their actions and produce the documents upon request.

So, how does a judge-invented legislative privilege supersede an explicit statute requiring the production of documents that provide “an accurate knowledge” about the origins and operations of the misbegotten audit? The justices don’t bother to explain.

The decision is full of high-minded tributes to respecting the separation of powers and not having judges intrude into the legislative realm. But it gets the application of that important principle wrong.

The audit was not approved by any body of the Legislature. It was launched by just two legislators, Fann as Senate president and Warren Petersen as chairman of the Judiciary Committee.

The true expression of legislative will is to be found in the public records statute, which was duly approved by both chambers of the legislature and signed into law by the governor. By not enforcing that statute in this circumstance, the court is undermining the separation of powers, not respecting it.

The public does not currently have “an accurate knowledge” of the origins and operations of the misbegotten audit. 

A lot is known. Fann claimed that the purpose of the audit was just to find the truth, but hired Trump conspiracists to conduct it. The process was shambolic; the results routinely debunked and discredited.

What is unknown is whether this was due to incompetence or malice. 

The documents the high court has enabled Fann and the Senate to keep confidential might have shed some light on this distinction, which might have had a large influence on how the public regards the audit. Or they might not.

Regardless, the high court has denied the public the “accurate knowledge” about the audit the state’s public records law is intended to provide.

Reach Robb at robtrobb@gmail.com.