Are audit documents privileged?

This newspaper and an activist group called American Oversight have filed separate lawsuits to document the internal workings of state Senate President Karen Fann’s fraud of an election audit.

The Senate’s role in the audit was nominal. It provided a fraction of the funding and exercised no meaningful oversight.

Instead, the audit was funded and conducted by Trump conspiracists.

The lawsuits assert that, under Arizona public records law, all communications between everyone involved, and all documents produced in conjunction with the audit, must be disclosed. Only with such disclosure can Arizonans know, understand and assess the backroom maneuvering and manipulation that went on by the conspiracists. It is the necessary denouement of the unnecessary trauma Fann has put the state through.

The cases are before different Superior Court judges. Both have held that these communications and documents are public records required to be disclosed. In one case, that has been affirmed by the Court of Appeals. The state Supreme Court declined further review.

Nevertheless, the Senate is refusing to turn over some materials, claiming a thing called “legislative privilege.”

That gambit doesn’t appear to be working. One judge has generally rejected the claim of legislative privilege with respect to these materials. The other is reviewing some of the materials in camera, with a skeptical eye as to whether they qualify.

However, there is such a thing as “legislative privilege” in Arizona case law. And the current jurisprudence on it is excessively expansive, and confused, as to what it covers.

The Arizona Constitution states that: “No member of the legislature shall be liable in any civil or criminal prosecution for words spoken in debate.” That’s a fairly narrow immunity. Only for words spoken in debate. And only against civil or criminal prosecution.

That’s been expanded by Arizona courts. And by federal courts and other state courts construing similar provisions of the U.S. Constitution and state constitutions.

In general, the courts have found that there is a broader common law legislative privilege dating back to conflicts between the crown and English parliament in the 1600s.

This privilege protects not only against criminal or civil liability for legislative acts. It also protects the confidentiality of anything that is “an integral part of the deliberative and communicative processes” involved in legislating. According to case law, the privilege can extend to the actions of staff and work product created in the course of legislating.

Now, in the first place, explicit statutory law, such as Arizona’s public records statute, trumps, or should trump, common law. No legislator is being subject to civil or criminal prosecution in these lawsuits. The issue of legislative privilege shouldn’t even be a consideration in a public records case. The Legislature is subject to that law. Disclosure isn’t prosecution. That should be case closed.

But because of the expansive case law regarding legislative privilege, the two trial court judges have to wrestle with the assertion. The case law doesn’t make that easy.

The standard – “an integral part of the deliberative and communicative processes” – is highly subjective, which inevitably leads to muddled jurisprudence.

Take the question of whether an investigation, which the audit could be characterized as, is “an integral part of the deliberative and communicative processes.” Arizona courts have said yes they are. And no they are not.

Just recently, the state Supreme Court held that an investigative report about misconduct regarding a state representative enjoyed legislative immunity (Mesnard v. Campagnolo). But a press release regarding the investigative report did not.

In 1975, however, the high court held that an investigation into racing being conducted by an Arizona congressman wasn’t eligible for legislative privilege (Steiger v. Superior Court).

In largely rejecting the claim for legislative privilege in the American Oversight case, the trial court judge put great weight on the fact that there is no specific legislation pending. But from the beginning, Fann has said that one of the purposes of the audit was to help determine where additional legislation was needed.

There was no legislative action pending when the misconduct investigation took place that the high court said did enjoy legislative immunity. The legislative action was partly triggered by the investigation, as is likely to be the case with Fann’s audit.

The state Constitution’s grant of immunity from civil and criminal prosecution for words spoken in debate is clear. The court’s broader legislative privilege is not.

If this issue gets to the high court in these lawsuits, legislators and the public both deserve greater clarity and a less subjective standard.