Cyber Ninjas ‘playing with fire’

Judges losing patience with firm in public records dispute

PHOENIX — 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 noncompliance, 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 Dec. 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.

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