WASHINGTON, D.C. February 1, 2023 — In an egregious attempt to evade accountability and hide the truth from the public, the Arizona Legislature last week implemented rule changes that instruct lawmakers to delete communications, thus allowing them to avoid releasing documents under the state’s public records law. 

Had these rules existed in 2021, the public would not have learned the whole truth about the Senate’s partisan and conspiracy theory-fueled “audit” of Maricopa County’s 2020 election results, thanks to documents released in response to watchdog group American Oversight’s litigation.

The new rules — which shift the Legislature’s retention policy to a default standard of deleting emails and, in the state Senate, completely shield messages sent on personal devices from public view — are dangerous for democracy and defy the public’s right to be informed about the actions of their elected officials. 

Statement from American Oversight Executive Director Heather Sawyer:

“This rule change only benefits lawmakers who want to hide the truth from the people they serve. If this destruction rule had been in place in 2021 or 2022, the public would not have learned the whole truth about the partisan ‘audit’ of Maricopa County. While allowing offices to retain emails, that decision appears to be entirely discretionary and is buried within language encouraging elected officials to delete public records after 90 days. Moreover, the Senate rule shielding texts related to official government business from the public if sent or received on a private device is a flagrant public records loophole.

“This change abets government secrecy by virtually mandating the destruction of records that belong to the people of Arizona. An informed public is critical to a functioning democracy and this effort to hide the facts and evade public accountability should be reversed.”

Rule Changes

Under the new rules, first reported on by Capitol Media Services last Wednesday, email correspondence sent or received by lawmakers and staff will be deleted after 90 days unless it is actively retained because of ongoing or prospective administrative or legal proceedings.

Previously, it appears that the legislature had generally adhered to the same standards of preserving public records that applied to other government employees in Arizona. The Senate’s rule went even further in shielding official communications by stating that any message that is sent or received on the private device of any legislator, staff member, intern, or contractor “is not subject to public inspection,” with no stated exception for messages containing or about official government business — a flagrant public records loophole. 

The changes come a month after a decision by the Arizona Supreme Court finding that the Legislature can pass internal rules exempting lawmakers from meeting the state’s Open Meetings Act requirements. The ruling essentially leaves the Legislature to police itself, free from judicial oversight and without recourse for citizens to challenge the Legislature’s lack of transparency.

American Oversight’s Investigation of Arizona Senate Election ‘Audit’

American Oversight used public records requests and litigation to investigate the 2021 election “audit” and extract thousands of pages of emails and text messages. Those records revealed top Senate officials’ close correspondence with election conspiracy theorists and partisan actors, and documented how the inquiry was rooted in the broader plot by allies of former President Trump to overturn the election.

Among the emails we obtained — emails that likely, under the new policy, would have been destroyed before the public knew or had the opportunity to request their release — were the following:

Early communications between the Senate and the Trump legal team, revealing the former president’s likely influence on the audit effort. On Dec. 2, 2020, Senate President Karen Fann wrote that she had “spoken with Mayor [Rudy] Giuliani at least 6 times over the past two weeks.” In emails to constituents later that month, Fann wrote that the Senate has “the full support of Trump and [Giuliani]” and she received “a personal call from President Trump thanking us for pushing to prove any fraud.” 

Emails tying the audit’s origins to efforts to illegally reverse 2020 election results. In early January 2021, incoming state Sen. Kelly Townsend introduced a resolution to revoke President Biden’s valid electors and to appoint a slate of alternate, Trump-supporting electors. An email shows that on Jan. 5 — the day before a mob of Trump supporters ransacked the U.S. Capitol in an attempt to prevent the congressional certification of electors — Townsend emailed allies a link to the resolution, writing, “This resolution to appoint the alternate slate of electors is prepared and ready for the election audit findings, should they result in what I expect to happen.” 

Lawmakers’ text messages revealing the audit’s close collaboration with conspiracy theorists. Allied Security Operations Group, a firm pushing the narrative that the election was stolen, was considered as a potential contractor during the early days of audit planning. On Jan. 26, 2021, Fann texted Allied Security affiliate Phil Waldron — an election denier who had communicated with White House Chief of Staff Mark Meadows and others regarding the effort to keep Trump in power — asking him to send her a text when he submitted a proposal so that his email wouldn’t get “lost in the pile.” The Senate ultimately hired the inexperienced firm Cyber Ninjas to carry out the audit.

Lead contractor Cyber Ninjas’ text messages and emails related to the effort. Those records further documented the election review’s ties to conspiracy theorists and the Trump campaign as well as the extent to which audit leaders centered their work on a predetermined conclusion that would provide fuel for Trump’s false narrative of election fraud. Additional emails highlighted the Senate’s work with prominent conspiracy theorists and election deniers, including Jovan Hutton Pulitzer and Shiva Ayyadurai

American Oversight is a non-partisan, 501(c)(3) nonprofit ethics watchdog that uses public records requests backed by litigation to expose official misconduct, threats to democracy, and abuses of power at all levels of government. Documents obtained by American Oversight have supported investigative work by journalists, congressional committees, and independent watchdogs, and have been featured in hundreds of news reports across the country. Follow us at @weareoversight and learn more at http://www.americanoversight.org.