PHOENIX — The attorney for the Senate is asking a judge to delay any move to force lawmakers to immediately surrender some audit documents.
In new court filings, Thomas Basile told Maricopa County Superior Court Judge Michael Kemp he is convinced that an appellate court ultimately will conclude that the Senate is entitled to shield about 720 disputed documents from public view.
More immediately, Basile said that if the Senate is forced to surrender the documents now, it won’t matter if it turns out that the Supreme Court concludes that Kemp's ruling was in error. That's because it instantly would open them to inspection by anyone.
“In other words, it is impossible for the Senate to comply with the court's order but still preserve and maintain any right to meaningful review of its privilege claims,” he said. And Basile pointed out to Kemp that even he said that the issue of legislative privilege “will likely be resolved by the higher courts.”
“A stay will ensure that the appellate courts are afforded an opportunity to do precisely that,” the attorney said.
Kemp is set to hear arguments related to the case early this coming month.
The move is drawing derision from American Oversight, the proclaimed nonpartisan watchdog group which sued for the documents and, to date, has won at every round.
“Time and time again, the Senate has refused to comply with our public records requests,” the organization said in a Twitter post. “But the law is on our side.”
And American Oversight also pointed out that Kemp, in last week’s order directing production, underlined the importance of prompt action.
“The stakes could not be higher and transparency, which is at the heart of the public records law, substantially outweighs any concern regarding chilling future legislative deliberations,” the judge wrote.
At the heart of Basile’s request to Kemp is his belief that the judge, in ordering production of the documents, committed several errors.
That first error, he told Kemp, was his rejection of the idea that “legislative privilege” is absolute. Instead, Basile said, the judge appears to have adopted the belief that such privilege can be overruled based on a balancing test.
“No Arizona court has ever suggested that the legislative privilege is a qualified one,” Basile wrote. And he warned of the kind of precedent that a balancing test might set.
“If in fact the public records act can curtail otherwise cognizable privileges in furtherance of some ostensible public interest, then it is not clear why the same principle would not extend to, for example, the attorney-client privilege,” Basile said.
The Senate’s attorney also told the judge he was wrong to conclude that the only time lawmakers can claim the privilege to keep documents and communications secret is when they are discussing pending legislation.
“Legislative fact-finding investigations, such as the audit, are themselves an integral part of the deliberative and communicative process because they are necessary antecedents to the task of formulating and debating legislation,” Basile said.
The attorney also took a swat at Kemp's conclusion that the Senate, by having a public hearing to question its consultants about what they found — the judge called it “more akin to a press conference” — effectively waived any right to claim that the documents behind those findings were confidential.
“The Senate is aware of no authority for the notion that legislators’ questioning of third party witnesses in the Senate chamber is anything other than a legislative function, let alone a 'political' act akin to a 'press conference,’” Basile said.
And even assuming that the Senate has waived privilege to certain documents — a point Basile stressed he is not conceding — there is no authority to say that action waives any legislative privilege to any other documents.
But the main argument concerns the harm he said that would occur if the Senate were forced to disclose the documents now even as it seeks review of Kemp's ruling. Put simply, Basile said, if the appellate courts determine that the disputed documents are privileged, then the compelled disclosure would, by definition, “irreparably injury the Senate.”
He said it would be one thing if the status of the records were at issue in a different kind of lawsuit, where lawyers from one side are seeking what the other side possesses. In that case, Basile said, a court could enter a protective order forbidding the receiving attorneys from sharing the documents with anyone else.
That isn’t the case here. Basile said if the Senate is forced to surrender the documents now, the whole appeal effectively becomes moot because it would be too late to undo the damage that he said the Senate will incur.
The attorney said he understands the claim by American Oversight for “transparency.”
“But the Senate already has made what is likely the largest production of public records in Arizona history,” Basile told Kemp.
“The approximately 720 documents that remain withheld solely on legislative privilege grounds equal to only around 3% of the total universe of audit-related public records released to date,” he continued. “And a large number of them already have been produced in redacted form.”
Even American Oversight acknowledges what has been done so far, though its numbers are different. It says that its lawsuit already forced the release of more than 80,000 pages of records, including emails.
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