Cyber Ninjas are in breach of audit contract, Fann says
Cyber Ninjas is in breach of its agreement with the Arizona Senate to conduct an audit of the presidential election in Maricopa County, Senate President Karen Fann wrote in a Tuesday letter to the company.
Fann’s letter adds pressure on the Florida company to turn over thousands of records related to the audit, and also comes as the Senate itself is facing court sanctions for not in turn making those records available to Arizonans.
The letter was sent two days before a county judge was slated to consider Thursday whether Cyber Ninjas should face court penalties for not turning over records.
That case, filed by The Arizona Republic, is separate from another lawsuit in which left-leaning watchdog group American Oversight already has sought sanctions against the Senate.
Fann’s three-paragraph letter puts the onus on Cyber Ninjas. The Florida company’s failure to give the Senate documents pursuant to a judge’s order means the company violated its contract, according to Fann. And as such, the Senate “reserves its rights to pursue any and every applicable claim or remedy to enforce the agreement’s provisions.”
It is unclear what the consequences of violating the contract could be, and Fann, R-Prescott, declined to give specifics during a phone interview Wednesday.
One section of the contract says if Cyber Ninjas breaches the agreement, the Senate can terminate the contract and possibly recoup any pre-payments. The Senate hired the company on a $150,000 contract, though Cyber Ninjas has raised millions more for its effort from private donations. It’s not clear how much the Senate has paid the company so far.
Fann said Wednesday she sent the letter to Cyber Ninjas because the Senate is now facing court rulings that it cannot comply with because it does not have records.
“We’re between a rock and a hard place,” she said. “We have a judge that’s done a ruling that’s demanding papers to be turned over that I don’t even have, and then on the second piece, he is demanding these these documents between two private companies. And so, is that OK too?”
Two Cyber Ninjas representatives did not respond to emails about the letter.
Attorney: Letter is ‘too little too late’
Maricopa County Superior Court Judge John Hannah previously ordered Cyber Ninjas in late August to make public things such as emails, texts and other communications related to the audit. The Republic filed a lawsuit for the records, naming both Cyber Ninjas and the state Senate as defendants.
The news organization is now asking Hannah to hold the Cyber Ninjas in contempt for not turning over the vast majority of them.
An attorney for The Republic, David Bodney of Ballard Spahr in Phoenix, said Fann’s letter was “too little too late to be taken as a serious effort on the Senate’s part to exercise control over these public records some six months after they were first requested.”
Fann noted the letter was her second trying to obtain records from Cyber Ninjas and defended the Senate saying it had made tens of thousands of other records publicly available. The letter says the Senate has gotten about 300 records from the contractor, of what could be closer to 60,000 available documents.
Fann sent another letter Tuesday to audit subcontractors Wake TSI of Pennsylvania, CyFIR of Virginia and StratTech Solutions of Scottsdale demanding that they immediately make available to the Senate records in their control that “include without limitation all documents and communications relating to the planning and performance or execution of the Audit, all policies and procedures used in connection with the Audit, all records concerning Audit funding or staffing, and all records that are reasonably necessary or appropriate to maintain an accurate knowledge of activities concerning the Audit.”
Fann said, “The only reason I sent the letter to Cyber Ninjas and to the subcontractors was to let them know that the judge is now talking about sanctions, this that and the other, and they need to be aware and they need to turn these things over. That’s the best I can do right now.”