Arizona Supreme Court holds that legislative privilege protects from disclosure some Senate records related to the 2020 election audit.

After the 2020 election, the Arizona Senate retained a third-party contractor to conduct an audit of the voting process. The third-party contractor drafted a report of its findings, which the Senate released to the public.

A nonprofit organization submitted requests to the Senate and the contractor for public records related to the contractor’s work. The Senate refused to produce most of the requested documents, so the organization filed a complaint under Arizona’s public records law, A.R.S. § 39-121, to compel disclosure of the documents.

The Senate moved to dismiss, arguing that the suit was barred by legislative immunity. The trial court rejected that argument, and, after the court of appeals denied special action relief, the Senate produced most of the records. However, the Senate still withheld several hundred documents, claiming legislative privilege.

The organization moved to compel production of the withheld records. The trial court rejected the privilege argument, holding that the Senate had waived the privilege by producing the contractor’s report to the public. The court of appeals took a different tack and ordered that the Senate produce all records because they did not relate to proposed or pending legislation and because the Senate had failed to show that production would impair the legislative process.

On review, the Arizona Supreme Court vacated the court of appeals’ decision and remanded to the trial court. After recounting the historical background of legislative immunity and legislative privilege, the Court held that legislative privilege extends to the Senate’s records to the extent they concern matters placed within the jurisdiction of the legislature. Here, that includes the Senate’s legislative investigation activities, because those activities often precede more formal legislative activity. In the Court’s view, because the Senate has the power to enact election laws, and because the contractor’s work was meant to identify possible areas for legislative fixes, communications related to that work fall within the jurisdiction of the legislature and are subject to legislative privilege. Importantly, whether legislation was the “prime purpose” of the investigation plays no role in whether the investigation is subject to the privilege, and a proponent need not show that disclosure of the record would impede the legislative process.

On the other hand, acts that are administrative or political in nature are not subject to the privilege. These include areas such as the administration of statutes, performing tasks for constituents, and issuing news releases. As relevant here, documents and communications that fall outside the privilege include discussions regarding administration of the audit (such as payment and employment of consultants), the public’s reaction to the audit, and whether and what information to release to the public.

In remanding to the trial court, the Court took the opportunity to explain what information a privilege log should contain. Vague descriptions are not enough—instead, a party providing a privilege log must include specific assertions explaining why a document is subject to privilege.

Justice Lopez authored the opinion for a unanimous Court.

Posted by: Joshua J. Messer