Fann v. Hon. kemp/american ( 2022 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KAREN FANN, in her official capacity as President of the Arizona Senate;
WARREN PETERSEN, in his official capacity as Chairman of the Senate
Judiciary Committee; the ARIZONA SENATE, a house of the Arizona
Legislature, Petitioners,
v.
THE HONORABLE MICHAEL KEMP, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
AMERICAN OVERSIGHT, Real Party in Interest.
No. 1 CA-SA 21-0216
FILED 1-21-2022
Petition for Special Action from the Superior Court in Maricopa County
No. CV 2021-008265
The Honorable Michael Kemp, Judge
JURISDICTION ACCEPTED;
RELIEF DENIED IN PART, GRANTED IN PART
COUNSEL
Statecraft PLLC, Phoenix
By Kory A. Langhofer, Thomas J. Basile
Counsel for Petitioners
Coppersmith Brockelman PLC, Phoenix
By L. Keith Beauchamp, Roopali H. Desai, D. Andrew Gaona
Counsel for Real Party in Interest
Ballard Spahr LLP, Phoenix
By David J. Bodney, Craig C. Hoffman
Counsel for Amicus Curiae, Phoenix Newspapers, Inc., and Kathy Tulumello
FANN, et al. v. HON. KEMP/AMERICAN
Opinion of the Court
OPINION
Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.
B R O W N, Judge:
¶1 In this public records case, Senate President Karen Fann,
Senate Judiciary Committee Chairman Warren Petersen, and the Arizona
Senate (collectively “the Senate”) seek special action relief from the superior
court’s order rejecting the Senate’s contention that it may withhold about
1,100 records relating to its election audit based on legislative privilege. In
this decision, we address whether (1) the privilege broadly shields all the
records listed in the Senate’s privilege log from disclosure under Arizona’s
public records law (“PRL”), A.R.S. § 39-121; and (2) the Senate globally
waived the privilege for all records concerning the audit by making
periodic and comprehensive public statements.
¶2 We conclude the Senate has not met its burden of showing
that all communications listed in its privilege log may be withheld based
on legislative privilege. The superior court erred, however, in finding a
global waiver of the privilege.
BACKGROUND
¶3 In March 2021, the Senate initiated an audit of approximately
2.1 million ballots cast during the November 2020 general election
conducted in Maricopa County. The Senate contracted with a private
corporation, Cyber Ninjas, to serve as the primary vendor for the project.
As provided in the “Statement of Work,” the Senate and Cyber Ninjas
described the audit’s scope as an “attempt to validate every area of the
voting process to ensure the integrity of the vote,” and would include
auditing of “the registration and votes cast, the vote counts and tallies, the
electronic voting system, as well as auditing the reported results.” They
also agreed that at the audit’s conclusion, the “primary deliverable” would
be a report detailing all findings discovered during the audit, including
recommendations “on how to prevent any detected weaknesses from being
a problem in future elections (if applicable).” Six months later, Cyber
Ninjas delivered its audit report to the Senate, which then released the
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report to the public and conducted a public hearing outlining the report’s
findings and conclusions.
¶4 Meanwhile, American Oversight, a nonprofit organization
that advocates for government transparency, submitted requests to the
Senate and Cyber Ninjas for production of public records relating to the
audit. When the Senate refused to produce most of the requested records,
American Oversight filed a complaint under the PRL to compel disclosure
of the documents, including those in the possession or custody of Cyber
Ninjas and its contractors.
¶5 The Senate moved to dismiss the complaint, asserting in part
that legislative immunity barred the lawsuit. The superior court rejected
the Senate’s assertion and directed it to immediately disclose “all
documents and communications relating to the planning and execution of
the audit, all policies and procedures being used by the agents of the Senate
Defendants, and all records disclosing specifically who is paying for and
financing this legislative activity, as well as precisely how much is being
paid,” and “all other documents having ‘a substantial nexus to the audit
activities.’” This court accepted jurisdiction of the Senate’s ensuing special
action petition but denied relief. Fann v. Kemp (“Fann I”), 1 CA-SA 21-0141,
2021 WL 3674157, at *1, ¶ 1 (Ariz. App. Aug. 19, 2021) (mem. decision).
¶6 In Fann I, the Senate argued it was constitutionally immune
from suit because the decision to withhold or disclose audit records is a
“legitimate legislative function.” Id. at *2, ¶ 12. We rejected that argument,
reasoning in part that the legislature could have exempted itself from the
PRL, but it chose not to. Id. at *3, ¶ 15. We noted the PRL is subject to many
exceptions, but it does not afford a blanket exemption for the legislature.
Id. at ¶ 16. We therefore concluded that “[a]llowing the legislature to
disregard the clear mandate of the PRL would undermine the integrity of
the legislative process and discourage transparency, which contradicts the
purpose of both the immunity doctrine and the PRL.” Id. at ¶ 17.
¶7 Addressing the Senate’s separate contention that it did not
have custody of the documents maintained by Cyber Ninjas, we reasoned
that the Senate defendants have a duty under the PRL to maintain and
disclose public records relating to their official duties and that such
documents remain public even if possessed by a third party. Id. at *4,
¶¶ 21–23. Disagreeing with the Senate’s argument that “the superior
court’s order would open the files of all government vendors to public
inspection,” we pointed out that the Senate had “outsourced its important
legislative function to Cyber Ninjas,” adding that “only documents with a
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substantial nexus to government activities qualify as public records.” Id. at
*5, ¶ 24.
¶8 The Senate hired a third party to review and upload a
“massive repository of records.” The review included searching the
personal cell phones of Senator Fann, as well as audit liaisons Ken Bennett
and Randy Pullen. The Senate then disclosed about 22,000 records but
withheld 422 records on the grounds of legislative privilege and redacted
another 272 for the same reason. The Senate also withheld another 402
records based in part on legislative privilege. According to the Senate’s
privilege log, the emails contain “internal legislative discussions regarding
[the] audit,” while the text messages refer to “communications re:
legislative investigation and audit process.”
¶9 American Oversight moved to compel the Senate to produce
the withheld records, asserting the Senate was now relying on legislative
privilege to hide from public view “virtually every communication”
relating to the audit between (1) Senator Fann, Senator Petersen, Bennett,
and/or Pullen; and (2) any of those four individuals and anyone associated
with Cyber Ninjas or the various contractors conducting the audit.
American Oversight argued the Senate failed to meet its burden to show
that the legislative privilege applies to the records in its privilege log,
contending the Senate (1) provided insufficient information to conclude the
audit discussions were “an integral part of the deliberative and
communicative processes relating to proposed legislation,” and (2) failed to
show the communications at issue involve matters that were “necessary to
prevent indirect impairment of such deliberations.” American Oversight
also argued (1) the Senate waived its right to assert the privilege, pointing
to repeated public statements about the audit and the public hearing it
conducted on the audit report; and (2) alternatively, the court should
require the Senate to remedy its “inadequate” privilege log and provide
representative samples of withheld documents for in camera review.
¶10 In response, the Senate argued that the audit itself “is a
legislative matter within the scope of the privilege.” According to the
Senate, “courts have long recognized that investigations and other fact-
finding inquiries are integral to, and inseparable from, the act of
legislating,” and thus the privilege includes “the communication or
development of purely factual information” relating to those
investigations. Addressing the audit’s “intrinsic character as a legislative
function,” the Senate pointed to its power to issue subpoenas to Maricopa
County to obtain election materials as well as this court’s finding in Fann I
that the audit is an “official legislative activity.” The Senate therefore
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asserted that (1) legislative privilege is a constitutional limitation on the
PRL, (2) its privilege log was sufficient, and (3) no waiver of the privilege
had occurred.
¶11 After oral argument, the superior court explained it would
hold in abeyance whether an in camera inspection was necessary and
declined to address the sufficiency of the privilege log. Addressing the
merits, the court found that the Senate cannot assert the legislative privilege
because: (1) communications about the audit are not an integral part of the
deliberative process regarding proposed legislation; (2) disclosure of
documents with a substantial nexus to the audit would not impair the
deliberative legislative process; and (3) factual communications relating to
procedures, protocols, practices, findings, or conclusions relating to the
audit are not privileged. Describing the privilege as “qualified,” the court
further reasoned that American Oversight’s interest on behalf of the public
substantially outweighs the Senate’s interest in non-disclosure. It also
determined that even if the legislative privilege applies, the Senate waived
it by releasing many public statements, issuing its comprehensive report,
and holding the public hearing.
¶12 The Senate filed a petition for special action in this court,
challenging the superior court’s order granting American Oversight’s
motion to compel. Special action review is appropriate when there is no
“equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec.
Act. 1(a). Acceptance of special action jurisdiction is also appropriate to
review purely legal issues of statewide importance and first impression.
Gilbert Prosecutor’s Office v. Foster, 245 Ariz. 15, 17, ¶ 5 (App. 2018). Because
those factors are present here, we accept jurisdiction.
DISCUSSION
A. Public Records Law
¶13 “Public records and other matters in the custody of any officer
shall be open to inspection by any person at all times during office hours.”
A.R.S. § 39-121. Public officers are required to “maintain all records . . .
reasonably necessary or appropriate to maintain an accurate knowledge of
their official activities and of any of their activities that are supported by
monies from this state or any political subdivision of this state.” A.R.S.
§ 39-121.01(B). It is undisputed that the documents listed in the Senate’s
privilege log are public records.
¶14 “Consistent with the goal of openness in government,”
Arizona law broadly defines public records, creating a presumption that
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requires disclosure of public documents. Lake v. City of Phoenix, 222 Ariz.
547, 549, ¶ 8 (2009); see also Carlson v. Pima County, 141 Ariz. 487, 491 (1984);
Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351, ¶ 33 (App. 2001) (“The
core purpose of the [PRL] is to allow the public access to official records and
other government information so that the public may monitor the
performance of government officials and their employees.” (citation and
quotation omitted)).
¶15 Although the public’s right to access public records is broad,
it is not unlimited; the PRL is subject to statutory exemptions and the
common law also imposes certain limitations on disclosure. See Carlson, 141
Ariz. at 490. For example, an officer subject to the PRL may “deny or restrict
access where recognition of the interests of privacy, confidentiality, or the
best interest of the state in carrying out its legitimate activities outweigh the
general policy of open access.” Id. at 491. A public official bears the burden
of overcoming the presumption favoring disclosure. Cox Ariz. Publ’ns, Inc.
v. Collins, 175 Ariz. 11, 14 (1993). Pertaining to this special action, the Senate
relies only on the legislative privilege in defense of its decision to withhold
from public disclosure the records listed in its privilege log.
¶16 The Senate argues that when legislative privilege applies, it is
“absolute, unqualified, and superordinate” to the PRL. As we noted in Fann
I, 2021 WL 3674157, at *4, ¶ 19, the superior court described the audit as an
“important public function” and “an official legislative activity.” Such
descriptions, however, do not mean that legislative privilege, even where
applicable, necessarily defeats every public records request. See id. at *3,
¶ 16 (explaining that legislative immunity does not grant the legislature “a
blanket exemption from compliance with the PRL” or an exemption “from
lawsuits contesting a denial of access to public records”); see also Carlson,
141 Ariz. at 490 (explaining that common-law limitations on public access
“do not preclude inspection entirely even where the competing interests of
the common law limitations override the public’s right to inspect certain
documents”). But given the current posture of this case, we need not
address whether the PRL may trump the legislative privilege in a particular
situation. Instead, we consider only whether the privilege applies to every
confidential communication relating to the audit between legislators, or
between legislators and their agents.
B. Legislative Privilege
¶17 As a general principle, the doctrine of legislative privilege
“stems from the doctrine of legislative immunity,” which originates from
federal common law, the Speech or Debate Clause of the United States
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Constitution, and the Arizona Constitution. Ariz. Indep. Redistricting
Comm’n v. Fields, 206 Ariz. 130, 136, ¶¶ 15–16 (App. 2003); U.S. Const. art. I,
§ 6, cl. 1 (“[F]or any Speech or Debate in either House, [legislators] shall not
be questioned in any other Place.”); Ariz. Const. Art. IV, pt. 2, § 7 (“No
member of the legislature shall be liable in any civil or criminal prosecution
for words spoken in debate.”). Because Arizona’s doctrines of legislative
immunity and legislative privilege originate from the federal common law,
the federal Speech or Debate Clause is persuasive in interpreting the scope
of Arizona’s counterpart. Fields, 206 Ariz. at 137, ¶ 16 n.4. The Speech or
Debate Clause is rooted in separation of powers principles and “protects
Members against prosecutions that directly impinge upon or threaten the
legislative process.” Gravel v. United States, 408 U.S. 606, 616 (1972).
¶18 Legislative immunity “prevents legislators, their aides, and
their contractors from being criminally prosecuted or held civilly liable for
their legislative activities.” Mesnard v. Campagnolo, 251 Ariz. 244, 248, ¶ 12
(2021). “The legislative immunity doctrine also functions as a testimonial
and evidentiary privilege.” Fields, 206 Ariz. at 137, ¶ 17. When it applies,
the legislative privilege protects legislators from being required to testify or
produce evidence about their legislative activities or the motivations for
those activities. Id. And “to the extent the legislative privilege protects
against inquiry about a legislative act or communications about that act, the
privilege also shields from disclosure documentation reflecting those acts
or communications.” Id. at 141, ¶ 32.
¶19 When a legislator asserts the legislative privilege, the
legislator has “the burden of establishing that a matter is privileged.”
Steiger v. Superior Ct., 112 Ariz. 1, 3 (1975). We narrowly construe
constitutional, common law, and statutory privileges because they are “in
derogation of the search for truth.” Fields, 206 Ariz. at 136, ¶ 14 (quoting
United States v. Nixon, 418 U.S. 683, 709–10 (1974)). We review de novo the
application and scope of the legislative privilege. See id. We also review de
novo whether a party has waived a privilege, which is a mixed question of
fact and law. Id.¶20 The Senate argues the superior court erred in characterizing
Arizona’s legislative privilege as “qualified.” To the extent the court
reasoned that the state legislative privilege is qualified and subject to the
same balancing tests as the federal common law privilege, this was error.
See Favors v. Cuomo, 285 F.R.D. 187, 208–09 (E.D.N.Y. 2012) (explaining that
the federal common law privilege for state actors appearing in federal court
is a qualified privilege, where the “court must balance the interests of the
party seeking the evidence against the interests of the individual claiming
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the privilege” to decide whether it applies). The Senate also contends that
because the legislative privilege is not qualified, it must apply absolutely to
the records at issue. This argument, however, conflates a court’s decision
about when the privilege applies with how it is applied. When a matter
plainly falls within the scope of the privilege after consideration of the
particular circumstances in which the protection is claimed, it is absolute.
See Edwards v. Vesilind, 292 Va. 510, 525 (2016) (“Once a court determines
that legislative privilege attaches, it is absolute in nature.”); see also Miller v.
Transamerican Press, Inc., 709 F.2d 524, 528 (9th Cir. 1983).
¶21 Legislative privilege, however, does not apply to all
legislative-related conduct in all circumstances, and a court must first
determine whether the records or conduct at issue fall within the scope of
the privilege. That the court engages in this analysis does not make the
privilege “qualified,” as the Senate argues, but instead reflects the public
policy of narrowly construing privileges. See Blazek v. Superior Ct., 177 Ariz.
535, 537 (App. 1994). We reject the Senate’s apparent contention that the
privilege blocks disclosure under the PRL of any record that bears any
connection to a legislative function. See Fields, 206 Ariz. at 137, ¶ 18(explaining that legislative privilege “does not extend to cloak ‘all things in
any way related to the legislative process’” (citation omitted)). Instead, in
this case, we view the privilege in light of its well-recognized purposes,
together with the PRL’s strong presumption in favor of disclosure. The
Senate has presented no evidence that the requested records might be used
in any criminal or civil proceeding against any legislator, id. at 137, ¶ 17(explaining that legislative privilege protects legislators from being
required to testify or produce evidence about legislative activities), or that
disclosing the records might in any way impede the “fundamental
purpose” of the privilege, which is to uphold separation of powers
principles, see Gravel, 408 U.S. at 618. Under such circumstances, a legislator
seeking to invoke the legislative privilege to prevent disclosure of public
records under the PRL carries a heavy burden.
1. Scope of the Privilege
¶22 The federal Speech or Debate Clause is interpreted “broadly”
and covers “anything ‘generally done in a session of the House by one of
its members in relation to the business before it.’” United States v. Brewster,
408 U.S. 501, 509 (1972) (citation omitted). As such, the legislative privilege
covers legislative acts by a lawmaker and a lawmaker’s motivations for
those acts. Steiger, 112 Ariz. at 3. But the legislative privilege “should not
extend beyond what is necessary to accomplish the purposes of the [Speech
and Debate] clause.” Miller, 709 F.2d at 528; see Gravel, 408 U.S. at 618
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(“Rather than giving the [Speech and Debate] clause a cramped
construction, the Court has sought to implement its fundamental purpose
of freeing the legislator from executive and judicial oversight that
realistically threatens to control his conduct as a legislator.”). For that
reason, the privilege only protects activities within the “sphere of legitimate
legislative activity.” See Gravel, 408 U.S. at 624–25 (citation and quotation
omitted); see also Fields, 206 Ariz. at 136, ¶ 15. Thus, whether a legislator
may invoke the legislative privilege depends on whether the subject of the
inquiry is a legitimate legislative act. See Fields, 206 Ariz. at 137, ¶ 17.
¶23 Not everything a legislator does qualifies as a legislative act.
See Gravel, 408 U.S. at 625 (“Legislative acts are not all-encompassing.”).
The Supreme Court explained in Gravel that “[t]he heart of the Clause is
speech or debate in either House.” Id. The Court continued:
Insofar as the Clause is construed to reach other matters, they
must be an integral part of the deliberative and
communicative processes by which Members participate in
committee and House proceedings with respect to the
consideration and passage or rejection of proposed legislation
or with respect to other matters which the Constitution places
within the jurisdiction of either House. As the Court of
Appeals put it, the courts have extended the privilege to
matters beyond pure speech or debate in either House, but
“only when necessary to prevent indirect impairment of such
deliberations.”
Id. (citation omitted).
¶24 Arizona follows the analysis in Gravel to determine whether
acts other than pure speech and debate are protected under the legislative
privilege. See Fields, 206 Ariz. at 137, ¶ 18 (citing Gravel for the conclusion
that “the privilege extends to matters beyond pure speech or debate in the
legislature only when such matters are ‘an integral part of the deliberative
and communicative processes’ relating to proposed legislation or other
matters placed within the jurisdiction of the legislature, and ‘when
necessary to prevent indirect impairment of such deliberations.’” (citations
omitted)). The legislator asserting the privilege has the burden to show that
the Gravel/Fields framework is satisfied. See Steiger, 112 Ariz. at 3.
2. Gravel/Fields Framework
¶25 The Senate does not contend the audit is protected as “pure
speech and debate” occurring during in a legislative proceeding. See Gravel,
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408 U.S. at 625; Fields, 206 Ariz. at 137, ¶ 18. Rather, it argues the audit is
protected as “an integral part of the deliberative and communicative
processes” concerning “passage or rejection of proposed legislation or with
respect to other matters” within its jurisdiction. Gravel, 408 U.S. at 625. The
Senate disputes the superior court’s finding to the contrary, arguing that
the legislative privilege automatically attaches to every legislative
investigation. In support of this argument, the Senate notes that its
legislative subpoenas related to the audit were upheld, in part, because the
Senate issued them with “an eye to introducing possible reform proposals”
and that the audit report suggested potential reforms for identified election
issues. We decline to interpret the legislative privilege so broadly. See
Steiger, 112 Ariz. at 4 (“None of the cases construing the privilege have
extended it to the length sought by petitioner.”).
¶26 It is far from certain that the audit was, or even could be,
integral to the deliberative and communicative processes of the legislature.
Nothing in the record shows that the prime purpose of the audit was to
identify changes required to Arizona’s voting laws, and it is undisputed
that at no time during the audit was any election legislation pending before
the legislature. Rather, as outlined in the Statement of Work, the audit’s
primary objective was to verify that election procedures were sufficiently
observed. Indeed, the audit has more hallmarks of an administrative action
than of any deliberative or communicative process integral to its legislative
function. See Fields, 206 Ariz. at 137, 138, ¶¶ 18, 21 (noting that while the
legislative privilege does not apply to administrative tasks, it does cover
legislative acts that “bear[] the ‘hallmarks of traditional legislation’”
(citation omitted)). Therefore, the superior court’s finding was not in error.
¶27 For the same reason, we reject the Senate’s contention that the
superior court committed reversible error by characterizing the public
hearing on the final audit report as a “political act.” On September 24, 2021,
the Senate held a public hearing in the Senate chambers “to outline their
findings and conclusions.” As the court explained, no sworn or questioned
witnesses were at the hearing, nor did any debate or deliberating occur. In
fact, the only legislators formally present were Senators Fann and Petersen.
The court found that the hearing was “much more akin to a press
conference.” Even if the court’s label was incorrect, it makes no difference
because the hearing lacked the hallmarks of traditional legislation. See
Fields, 206 Ariz. at 138, ¶ 21 (explaining that an act is legislative when it
reflects a “discretionary, policymaking decision that may have prospective
implications” (citation omitted)).
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¶28 The Senate argues the audit was a “fact-finding
investigation[] in furtherance of potential future lawmaking projects.” As
such, the Senate contends the legislative privilege applies to every
confidential communication between a legislator and their staff or agents
relating to the “planning, execution and results of the Audit.” The
legislature has the power to conduct investigations aimed at determining
the need for new legislation. See Eastland v. U.S. Servicemen’s Fund, 421 U.S.
491, 504 (1975) (“[T]he power to investigate is inherent in the power to make
laws because ‘[a] legislative body cannot legislate wisely or effectively in
the absence of information respecting the conditions which the legislation
is intended to affect or change.’” (citation omitted)). But the mere fact that
the legislature conducted an investigation does not mean it is necessarily
protected by the legislative privilege.
¶29 “The ‘legislative process’ does not . . . mean that everything
related to the office of Congressman is shielded by the Clause. Only those
acts generally done in the course of the process of enacting legislation are
protected.” Steiger, 112 Ariz. at 3; see also Miller, 709 F.2d at 530 (“Not all
conduct preceding a legislative act falls within the privilege.”). In Steiger, a
member of Congress invoked the legislative privilege under the federal
Speech or Debate Clause to prevent his former aide from being deposed
about a meeting that took place with the member, his aide, and other
individuals. 112 Ariz. at 2. The member argued the deposition related to a
legislative investigation he contemplated undertaking. Id. at 3. Our
supreme court rejected this argument because there was “no showing that
the investigation was related to any pending congressional inquiry or
legislation.” Id. While the court recognized that “the impetus” for
subsequent proposed legislation may have been related to the investigation,
it declined to extend the legislative privilege to “all things in any way
related to the legislative process.” Id. at 4 (“Under such an expansive view
there are few activities in which a legislator engages that could not be
somehow related to the legislative process.”).
¶30 In short, the Senate has made no showing that the audit was
in any way related to any proposed legislation. The scope of the audit, as
described in the Statement of Work, was to “validate every area of the
voting process to ensure the integrity of the vote.” The audit’s stated
purpose reflects no promise to propose legislation in the future. And while
the audit might have revealed areas in Arizona’s election process that could
be the subject of new legislation, the connection between the audit and any
future legislation is too tenuous to conclude that the audit could reasonably
qualify as a legitimate legislative act. See United States v. Renzi, 651 F.3d
1012, 1022 (9th Cir. 2011) (noting there is a “marked distinction” between
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performing a legislative act and promising to perform one in the future).
Thus, we reject the Senate’s broad assertion that the legislative privilege
covers every legislative communication listed in its privilege log.
¶31 The Senate also contends the investigation is a matter placed
within its jurisdiction, another element of the Gravel/Fields framework. But
the Senate does not explain how that fact alone can trigger application of
the legislative privilege. Not everything a legislator does, even if related to
his or her official duties, can be classified as a legislative act under the
framework. See Brewster, 408 U.S. at 515 (“In no case has this Court ever
treated the Clause as protecting all conduct relating to the legislative
process.”); see also Steiger, 112 Ariz. at 4 (“Neither the history, literal
language, nor judicial construction extend the privilege to include all things
in any way related to the legislative process.”). Only activities “done in the
course of the process of enacting legislation” receive protection. Steiger, 112
Ariz. at 3.
¶32 The Senate further argues the superior court erred in ruling
the privilege would apply to the audit only if the Senate could show the
privilege was “necessary to prevent indirect impairment of” the Senate’s
protected deliberations. But this court’s adoption and approval of the
Gravel framework in Fields refutes that argument. See Fields, 206 Ariz. at
137, ¶ 18. Because the Senate has made no attempt to show how
confidential treatment of its communications relating to the audit was
necessary to prevent indirect impairment of its legislative deliberations, it
has necessarily failed to meet its burden of establishing that each of the
records listed in the privilege log are shielded from public disclosure.
3. Waiver
¶33 The superior court held that the Senate globally waived any
claim to the legislative privilege by speaking publicly about the audit,
publishing a report, and holding a public hearing addressing the report’s
findings and conclusions. The court reasoned that the Senate “cannot
publicly release numerous public statements about the audit, release a
comprehensive report about the audit, and then refuse to disclose
documents and communications that are central and integral to the findings
and conclusions of that report.” In reaching this conclusion, the court cited
Fields, where we held that the designation of a consulting expert as a
testifying-expert witness waives the legislative privilege “(1) attaching to
communications with those experts, or any materials reviewed by them,
and (2) relating to the subject of the expert’s testimony.” 206 Ariz. at 144–
45, ¶ 50.
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¶34 We agree with the superior court that the legislative privilege,
unlike legislative immunity, can be implicitly waived when a legislator acts
inconsistently with asserting the privilege. Am. Cont’l Life Ins. Co. v. Ranier
Constr. Co., 125 Ariz. 53, 55 (1980); see also Favors, 285 F.R.D. at 211–12; Puente
Ariz. v. Arpaio, 314 F.R.D. 664, 671 (D. Ariz. 2016). This may occur during
litigation when a party testifies to otherwise privileged information, or by
communicating privileged information to outsiders. Favors, 285 F.R.D. at
211–12. But it cannot be the case that when a legislator makes a public
statement about a particular matter, he or she automatically waives all
legislative privilege claims over every communication relating to that
matter. Adopting that principle would discourage legislators from
providing public disclosures in any significant detail, undermining public
transparency and thus defeating the purposes of the PRL. Moreover, the
legislative privilege is personal; it must be waived or asserted by the
specific legislator involved in the communication at issue. Gravel, 408 U.S.
at 621–22, 622 n.13. Individual legislators have the right to assert the
legislative privilege over their own communications relating to legitimate
legislative acts, and the court’s broad application of waiver could interfere
with that right.
¶35 The analogy to Fields is not persuasive, as our holding in that
case was based in part on the particular needs of litigation; specifically, the
needs of the opposing party when cross-examining a designated expert
witness. 206 Ariz. at 143–45, ¶¶ 43–50. Further, in litigation, a legislator
may face a choice between invoking the legislative privilege and waiving it
by calling a witness who will be questioned on otherwise privileged
matters. The record before us does not show that the Senate has globally
waived the privilege for every record related to the audit. Thus, the Senate
is not necessarily foreclosed from establishing the privilege applies as to
individual records that could conceivably fall within the Gravel/Fields
framework. We express no opinion, however, whether the Senate can meet
its burden of showing that any of the records listed in the privilege log are
protected by the legislative privilege.
C. Attorneys’ Fees and Costs
¶36 American Oversight requests attorneys’ fees and costs
incurred in responding to the Senate’s petition under A.R.S. § 39-121.02(B),
which authorizes attorneys’ fees and “other legal costs” incurred in a public
records action if the party “seeking public records has substantially
prevailed.” We deny the request without prejudice, deferring it to the
superior court’s discretion pending the ultimate resolution of this litigation.
13
FANN, et al. v. HON. KEMP/AMERICAN
Opinion of the Court
See Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 204, ¶ 37
(App. 2007).
CONCLUSION
¶37 We accept jurisdiction but deny relief on the Senate’s claim
that the records listed in its privilege logs are broadly insulated from public
disclosure on the grounds of legislative privilege. We therefore affirm that
portion of the superior court’s ruling. We grant relief in part by vacating
the court’s decision finding global waiver of the privilege.
¶38 We direct the Senate to immediately disclose to American
Oversight all records listed in its privilege log that do not fall within the
Gravel/Fields framework analyzed above. To the extent the Senate claims
that any such records are nonetheless shielded from disclosure by the
legislative privilege, the Senate shall submit them forthwith to the superior
court for an in camera inspection. The court must then determine whether
the records fall within the scope of the privilege as discussed herein, or
whether they must be disclosed under the PRL.
AMY M. WOOD • Clerk of the Court
FILED: AA
14