Fann v. Hon. kemp/american

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.

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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

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