y
FEB 1 8 2025

1 David l Bodney (006065)
bodneyd@ballardspahr.com
2 Matthew E. Kelley (037353)
3 kelleym@ballardspahr.com
Helen Hitz (039579)
4 hitzh@ballardspahr.com
5 BALLARD SPAHR LLP
1 East Washington Street, Suite 2300
6 Phoenix, AZ 85004-2555
Telephone: 602.798.5400
7 Facsimile: 602.798.5595
8 Attorneys for Plaintiff Human Rights
Defense Center
9

CLEl{K OF fH!:: SUPERIOR COURT
V 0/AZ
01:PUTY CLERK

10

ARIZONA SUPERIOR COURT

11

MARICOPA COUNTY

12
13 HUMAN RIGHTS DEFENSE CENTER, a
14 Washington corporation,
15

Plaintiff,

16
VS.

NO.

V2 Q 2 5 QO6 0 3 7
_C_-,_ _ _~ - - - ~

COMPLAINT FOR STATUTORY
SPECIAL ACTION TO SECURE
ACCESS TO PUBLIC RECORDS

17
ARIZONA DEPARTMENT OF
18 CORRECTIONS,REHABILITATION &
19 REENTRY, a public body; and THE GEO
GROUP, INC., a Florida corporation,
20

(Assigned to the Honorable
---~

Defendants.

21
22
23

The Human Rights Defense Center ("HRDC"), which publishes the journals Prison

24 Legal News and Criminal Legal News, submits this Complaint for Statutory Special Action
25

to Secure Access to Public Records pursuant to A.R.S. § 39-121, et seq. (the "Arizona

26

Public Records Law") and Arizona Rules of Procedure for Special Actions 1-6, and alleges

27

as follows:

28

PARTIES, JURISDICTION, AND VENUE

1
2

1.

Plaintiff HRDC publishes the journals Prison Legal News and Criminal

3 Legal News, independent monthly magazines providing cutting-edge review and analysis
4

of criminal justice-related news to subscribers in all 50 states. HRDC is a Washington state

5 not-for-profit corporation with its principal place of business in Boynton Beach, Florida.
6
7

2.

By statute and case law, HRDC may request to examine or be furnished

copies of any Arizona public record, and custodians of public records are required to

8 furnish copies of such records "promptly." See A.R.S. §§ 39-121.0l(D)(l) and (E).
9

3.

Defendant Arizona Department of Corrections, Rehabilitation and Reentry

10

("ADCRR" or the ''Department"), as an executive department supported in whole or in part

11

by monies from the State of Arizona, is a "[p]ublic body" as defined by A.R.S. § 39-

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By law, ADCRR "shall maintain all records . . . reasonably necessary or

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14 appropriate to maintain an accurate knowledge of [its] official activities and of any of [its]
15

activities which are supported by monies from the state or any political subdivision of the

16 state." A.R.S. § 39-121.01 (B). The Department's statutory duties under the Arizona Public
17 Records Law extend to their custodians of records and, specifically, to their agents when
18

they are entrusted by contract or otherwise with ADCRR's duties to maintain and preserve

19 public records in their custody or control.
20

5.

Defendant The GEO Group, Inc. ("GEO" or "Defendant"), a corporation

21

organized under the laws of the state of Florida, has contracted with the Department to

22

operate certain ADCRR facilities.

23

6.

GEO is the sole custodian of ce11ain public records within the meaning of

24

A.R.S. § 39-121.01 that are created as a consequence of GEO's acting as an agent of

25

ADCRR, supported by and expending monies provided by the state, to perform the core

26

governmental function of operating state prison facilities. GEO, as the sole custodian of

27

those records, is required by law to furnish copies of those records "promptly" upon

28
2

1 request. A.R.S. §39-121.0l(D). If GEO fails or refuses to make public records in its
2

custody or control available for public inspection, then the Department, as GEO's principal

3

in this relationship, has a duty to prevail upon its agent to cooperate with lawful public

4

records requests.

5

7.

6
7

The Court has personal jurisdiction over the parties in this action, and venue

is proper in Maricopa County, Arizona. See RPSA 6(a).
8.

This petition seeks inspection and copying of public records in accordance

8 with A.R.S. § 39-121.02(A), which provides that "[a]ny person who has requested to
9

examine or copy public records pursuant to this aiiicle, and who has been denied access to

1O or the right to copy such records, may appeal the denial through a special action in the
11

superior court, pursuant to the rules of procedure for special actions against the officer or

12 public body." By law, "[a] ccess to public records is deemed denied if a custodian [of such
13

records] fails to promptly respond to a request for production of a public record." A.RS. §

14

39-121.0l(E).

FACTS

15
16

9.

HRDC regularly seeks public records regarding local, state and federal

17

prisons across the country, including records such as those at issue here regarding lawsuits,

18

verdicts and settlements involving allegations of civil rights violations, neglect,

19

malpractice or other torts. HRDC uses these public records in fulfilling its mission to

20

inform the public about prison conditions and operations. HRDC has successfully obtained

21

public records from Defendant GEO after filing suit in four other states.

22

10.

Pursuant to A.RS. §§ 41-1609, et seq., ADCRR may contract with private

23

institutions to house prisoners committed to the Department's custody. Defendant GEO

24

and CoreCivic, Inc., another private prison company, operate six private state prisons in

25

Arizona housing more than 10,000 inmates, for which ADCRR paid more than $269

26

million in per-diem costs in fiscal 2024.

27

11.

Defendant GEO operates four facilities housing approximately 6,000 male

28
3

1 prisoners for Defendant ADCRR, including:
a. The Central Arizona Correctional Facility in Florence, Arizona, a

2
3

1,280-bed medium-security prison for sex offenders;

4

b. The Florence West Correctional and Rehabilitation Facility m

5

Florence, Arizona, a 750-bed minimum-security prison;

6

c. The Kingman Correctional and Rehabilitation Facility m Golden

7

Valley, Arizona, a 3,500-bed prison complex comprising a 2,000-bed

8

minimum-security facility and a 1,500-bed medium-security facility

9

for sex offenders; and
d. The Phoenix \Vest Correctional and Rehabilitation Facility m

10
11

Phoenix, Arizona, a 500-bed minimum-security prison.
12.

12

On September 23, 2024, HRDC's Public Records Manager Tiffany Hollis

13

submitted a public records request (the "Public Records Request") to GEO's Arizona

14

offices. A true and correct copy of HRDC's Public Records Request to GEO is attached

15

as Exhibit 1.

16

13.

17

records in all claims or lawsuits brought against The GEO Group, Inc., and/or
any of its employees or agents in which payments totaling $1,000 or more
were disbursed from The GEO Group, Inc., and/or those entities' insurers to
resolve claims against it between September 23, 2014 to the present. These
payments include but are not limited to settlements, damages, attorney fee
awards, and sanctions, irrespective of the identity of the plaintiff or claimant.

18
19
20
21

The Public Records Request sought

Id.
14.

Specifically, HRDC :requested, in electronic native fonnat where possible,

22
and otherwise in electronic format:
23
a. Records sufficient to show:
24

1. The name of all parties involved;
25

26

2. The case or claim number;
3. The jurisdiction in which the case or claim was brought

27

28

(e.g., US District Court for the District of Arizona,

4

1

Arizona Supreme Court, etc.);

2

4. The date of resolution;

3

5. Payments, including legal fees, in the resolution and to

4

whom it was paid;

5

b. For each case or claim detailed above:

6

1. The complaint or claim form and any amended

7

versions;

8

2. The verdict form, final judgment, settlement agreement,

9

consent decree, or other paper that resolved the case.

10 Id.
11

15.

GEO responded on October 28, 2024, categorically denying HRDC's Public

12 Records Request and claiming that GEO "is not subject to the requirements or enforcement
13

mechanisms of the [Public Records Law]'' because it is a private corporation. Additionally,

14

GEO asserted that it denied the request because it "may also seek confidential, private, or

15 personal records/information beyond the scope of Title 39." A true and correct copy of
16
17

GEO's denial of the Public Records Request is attached as Exhibit 2.
16.

On November 26, 2024, counsel for HRDC wrote to GEO seeking "prompt

18

and full compliance" with the Public Records Request, noting that HRDC had not received

19

any responsive records. A true and c01Tect copy of that correspondence is attached as

20

Exhibit 3.

21

17.

HRDC's correspondence explained that the Arizona Public Records Law

22

applied in this circumstance because GEO "is a custodian of public records related to the

23

performance of essential governmental functions within the meaning of the statute."

24

Exhibit 3 at 1.

25

18.

On December 30, 2024, GEO responded and again refused to produce the

26

requested public records, claiming the Public Records Request was overbroad, did not have

27

a substantial nexus to a government agency's activities, and sought records subject to

28
5

1 private confidentiality agreements negotiated between GEO and individual litigants or
2

claimants. Additionally, GEO continued to claim that it is not a public body or custodian

3

subject to the Public Records Law, arguing that operating state correctional facilities is not

4

a public function for purposes of the Public Records Law. A true and correct copy of

5

GEO's denial letter is attached as Exhibit 4.

6

any of the requested public records. On information and belief, GEO has communicated

8

its policy decision to deny such requests for public records to its principal, the Department,

9

or should have done so pursuant to Depaitment regulations.

11

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promptly, Defendants have denied HRDC's Public Records Request, and they have done

12 so wrongfully. See A.R.S. § 39-121.0l(E) and §39-121.02(C).
13

COUNT ONE: Violation of A.R.S. §§ 39-121, et seq.
by Defendants ADCRR and The GEO Group, Inc.

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By their failures to provide access to or copies of all of the requested records

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As of the date of this writing, HRDC has not received access to or copies of

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15

21.

The Arizona Public Records Law provides that "[p]ublic records and other

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16

matters in the custody of any officer shall be open to inspection by any person at all times

17

during office hours." A.R.S. § 39-121.

18

22.

Consistent with this state's long tradition of transparent government,

19

"Arizona law defines 'public records' broadly and creates a presumption requiring the

20

disclosure of public information." Lake v. City of Phoenix, 222 Ariz. 547, 549 (2009); see

21

also Cox Ariz. Publ'ns v. Collins, 175 Ariz. 11, 14 (1993) (Arizona statutory and case law

22

articulates a "strong policy favoring open disclosure and access."). Under Arizona law,

23

public records are those documents which have a '"substantial nexus' to government

24

activities ... and the nature and purpose of a document determine whether it is a public

25

record." Lake, 222 Ariz. at 549 (citation omitted).

26

27

23.

The documents responsive to HRDC's request unquestionably are public

records because they have a substantial nexus to government activities: the operation of

28
6

1 Arizona state prisons. The Department therefore was required to ensure that the requested
2

records were maintained and made available on request by its agent and records custodian,

3

GEO. See A.R.S. § 39-121.0l(B).

4

24.

Under the Arizona Public Records Law, a contractor to which a public body

5 has delegated a governmental function is the custodian of public records regarding its
6 performance of that public function and must "promptly furnish" those public records on
7

request. Cyber Ninjas, Inc. v. Hannah No. 1 CA-SA 21-0173, 2021 Ariz. App. Unpub.

8 LEXIS 1107, at *6-8, 'ifil 15-16. (App. Nov. 9, 2021) (mem. decision); 1 see also Ex. 3 at 2.
9 Records in GEO's possession are "no less public records simply because they are in the
10 possession ofa third party." Fann v. Kemp, No. 1 CA-SA21-0141, 2021 Ariz. App. Unpub.
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11 LEXIS 834, at* 12, 'if 23 (App. Aug. 19, 2021) (mem. decision). 2
12

25.

It is well settled that "[a] privately owned corporation that operates prisons

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13 pursuant to a contract with a state performs a public function that is traditionally the

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exclusive prerogative of the state." Domingo v. Thomas, No. CV 12-1775-PHX-DGC

~~fig:3: _g 0

15

(SPL), 2013 U.S. Dist. LEXIS 247, at *7 (D. Ariz. Jan. 2, 2013); see also Brink v. Herron,

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16 No. CV20-01097-PHX-SPL(DMF), 2020 U.S. Dist. LEXIS 162680, at *12 (D. Ariz. Aug.
17

7, 2020) ("The GEO Group Incorporated performs a public function, i.e., operating and

18

managing a prison.").

19

Therefore, as with the Arizona Senate in Cyber Ninjas, ADCRR has

26.

20

outsourced performance of the important public function of operating prisons to GEO with

21

respect to the facilities GEO operates. 2021 Ariz. App. Unpub. LEXIS 1107, at *9-10, 'ifi!

22

19-20. Defendant GEO is the custodian of public records created in the course of its

23

perfonnance of that "core governmental function" as ADCRR's agent. Fann, 2021 Ariz.

24 App. Unpub. LEXIS 834, at *13, if 24; Cyber Ninjas, 2021 Ariz. App. Unpub. LEXIS 1107,
25

at*6-7,'i[l5.

26
27

1 Pursuant

28

2

to Ariz. Sup. Ct. R. l l l(c)(3), a copy of this opinion is attached as Exhibit 5.

Pursuant to Ariz. Sup. Ct. R. l 1 l(c)(3), a copy of this opinion is attached as Exhibit 6.
7

1
2

27.

As such, Defendant GEO is required to maintain the public records at issue

and make them available for inspection and copying promptly upon request by members

3 of the public, including HRDC and its journalists. Id. at *7-8,

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refused to do so.

5

28.

16-17. Yet, GEO has

Moreover, ADCRR regulations require private prison staff to maintain and

6

disseminate records pursuant to the Department's public records policies. See Ariz. Dep't

7

of Corrections, Rehabilitation & Reentry, Dep't Order #106-Contract Beds,

8

https://corrections.az.gov/sites/default/files/documents/policies/100/DO%20106%20-

9

%20Eff.%204-15-24.pdf; Ariz. Dep't of Conections, Rehabilitation & Reentry, Dep't
#201-Legal

10

Order

11

https ://corrections.az.gov/sites/default/files/ documents/policies/200/0201. pdf

12

order applies to private prison employees who receive public records requests).

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The ability to access records pe1iaining to the operation of state prisons is a

14

matter of intense public concern. Defendant GEO manages and operates four state prisons

15

detaining some 6,000 Arizona prisoners on behalf of ADCRR. Defendant GEO, therefore,

16

fulfills a governmental :fimction necessary for upholding the rule of law and ensuring the

17

safety of both the public and the incarcerated. But the public cannot properly evaluate

18

Defendants' conduct and usage of government money without prompt and full access to

19

the very public records that Defendants are unlawfully withholding.

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20
21

30.

There is a strong public benefit in honoring the public's statutory right to

inspect these Public Records, and Defendants have failed to articulate any specific harm

22 that would arise from the release of any portion of the Public Records. There is no such
23

harm, and HRDC has given ADCRR's agent and records custodian, GEO, ample and

24

repeated opportunities to assert any.

25
26

31.

For all these reasons, Defendants ADCRR and GEO have failed to perfonn

their duties required under the Arizona Public Records Law regarding requested records in

27
28
8

1 the custody or control of GEO, and they have wrongfully denied HRDC access to inspect
2 and copy these records as a matter of law.
3

PRAYER FOR RELIEF

4

Wherefore, HRDC prays for relief from this Court as follows:

5

A.

For a Declaration, pursuant to A.R.S. § 12-1831 et seq., that Defendants have

6 violated Arizona's Public Records Law, A.R.S. § 39-121 et seq;, by failing to provide
7 prompt access to and improperly withholding public records requested by Plaintiff;
B.

8

For an order setting an expeditious time for Defendants to produce all of the

9 Public Records to HRDC for inspection and copying;

C.
11

For a preliminary and permanent injunction, pursuant to A.R.S. § 12-1801 et

seq., ordering Defendants to immediately produce all requested public records in

12 compliance with A.R.S. § 39-121 et seq. and enjoining Defendants from further delaying
13

or improperly withholding public records in the future;

D.

14
15

For an award of HRDC 's reasonable attorneys' fees and other legal costs

against GEO and the Department,jointly and severally, pursuant to A.R.S. § 39-121.02(B);

16 and
17

E.

For such other and further relief as the Court deems just and proper.

18
19

DATED this 18th day of February, 2025.

20
21
22

BALLARD SPAHR LLP

By:

23
Matthew E. OCelley
Helen Hitz
1 East \Vashington Street, Suite 2300
Phoenix, AZ 85004-2555

24
25
26
27

Attorneys for PlaintiffHuman Rights
Defense Center

28
9

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 18th day of February, 2025, the foregoing document

3

4

was filed with the Office of the Clerk of the Superior Court, Maricopa County.
I further ce1iify that a complete copy of the foregoing was sent for hand-delivery

5

6

via process server this same date upon the following:

7

Office of the General Counsel
Arizona Department of Corrections, Rehabilitation & Reentry
8 1601 West Jefferson Street
9 Phoenix, AZ 85007
10
11
12

The GEO Group, Inc.
c/o Corporate Creations Net:vvork, Inc.
3260 North Hayden Road, #210
Scottsdale, AZ 85251

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Exhibit 1

Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

September 23, 2024

The GEO Group, Inc.
Central Regional Office
Attn: Public Records Officer
1777 NE Loop 410, Suite 1100
San Antonio, TX 78217

Submitted via Certified Alai/ w/ Return Receipt:
7014 0150 0002 2919 3398

Re:

Request for Settlements and Verdicts Records

To the Freedom oflnformation Act Officer:
The Human Rights Defense Center (HRDC) makes this request pursuant to the Arizona Public
Records Act, Ariz. Rev. Stat. Title 39, Chapter 1. HRDC is a non-profit dedicated to advocacy
and education around criminal justice issues. Among other activities, HRDC publishes the
journals Prison Legal News and Criminal Legal Ne,vs,

HRDC seeks the below specified records in all claims or lawsuits brought against The
GEO Group, Inc., and/or any of its employees or agents in which payments totaling $1,000 or
more were disbursed from The GEO Group, Inc., and/or those entities' insurers to resolve claims
against it between September 23, 2014 to the present. These payments include but are not limited
to settlements, damages, attorney fee awards, and sanctions, irrespective of the identity of the
plaintiff or claimant. Specifically, HRDC requests the following records, provided in electronic
native format where possible, and othetwise in electronic format:

1. Records sufficient to show:
•

The name of all parties involved;

•

The case or claim number;

•

The jurisdiction in which the case or claim was brought (e.g., US District Court for

the District of Arizona, Arizona Supreme Court, etc.);
•

The date of resolution;
P.O. Box 1151, Lake Worth, FL 33498
754-263-4568 I FOIA@humanrightsdefensecenter.org

•

Payments, including legal fees, in the resolution and to whom it was paid;

2. For each case or claim detailed above:
•

The complaint or claim form and any amended versions;

•

The verdict form, final judgment, settlement agreement, consent decree, or other
paper that resolved the case.

If this 1·equest is denied in whole or part, please justify all denials by reference to specific
exemptions. If any records responsive to 'this request are denied in part, release all segregable
portions of those records. Additionally, please outline any administrativ~ appeals process
available.

If there are any fees for searching or copying these records, please inform me if the cost will
exceed $50. However, I would also like to request a waiver of all fees in that the disclosure of
the requested information is in the public interest and will contribute significantly to the public's
understanding of the operation of The GEO Group, Inc. and how local government manages
taxpayer money. HRDC is a member of the news media and publishes two monthly magazines,
Prison Legal News and Criminal Legal Ne,.vs. This request is being made for news gathering
purposes. This information is not being sought for commercial purposes.
Please contact me via email at FOIA@humanrightsdefensecenter.org should you require any
additional information. Thank you for your time and attention in this matter.
Sincerely,

Tiffany Hollis
Public Records Manager
HUMAN RIGHTS DEFENSE CENTER

P.O. Box l 151, Lake Worth, FL 33460
754-263-4568 I FOIA@humanrightsdefensecenter.org

Exhibit 2

Li \¥/OFFICES

BROENING OBE G WOODS & WILSON
Profess nal Corporation

JONATHA."-1 Y, Yu

Address:
2800 N. Central Avenue, Suite 1600
PhocnL,, AZ 85004
(602) 271-7700

(602) 271-7724
ivylalbm,.•wlaw.com

hrrps:/ bvww,bowwlaw.com

Octo er 28, 2024

U.S. Mail
Tiffany Hollis
HUMAN RIGHTS DEFENSE CENTER

PO Box 1151
Lake Worth, FL 33460
Re: Request for Settlements and Ver icts Records

Ms. Hollis:
I write on behalf of The GEO GrotfP, Inc. ("GEO") in response to the Human Rights
Defense Center's ("HRDC") September 2 , 2024 letter requesting records and information
concerning claims or lawsuits involving GE and its employees between September 23, 2014 Present.
As you know, Arizona's Public Re ords Law ("PRL") only applies to "officers'' or a
"public body". A.R.S. § 39-121.01. Because GEO is a private corporation, it is not subject to the
requirements or enforcement mechanisms of the PRL. Notwithstanding the foregoing, the
HRDC's request may also seek confidential, private, or personal records/information beyond the
scope of Title 39. See Griffis v. Pinal County 214 Ariz. 1, 3- 5 (2007).
For the foregoing reasons, GEO resp ctfully declines the HRDC's request, and directs it
to the Arizona Department of Correctionp Rehabilitation and Reentry, which may be in
possession of documentation/information res onsive to its request.

Very truly yours,

JONATHAN Y. YU
For the Firm

SERVING OUR CLIENT AND COMMUNITY SINCE 1978

Exhibit 3

Ballard Spaly·
I i.',m

Matthew E. Kelley
Tel: 602.798.5422
Fax: 602.798.5595
kellevm@ballardspahr.com

Washington Srrc~r. Suite 1300

Phoenix, AZ 85004•1;55
TEL 60~.79$,54<)(1

BX 60:,7~S.5S95
www,bal!a rd sp,1h r.,0111

November 26, 2024

Via E-mail:_jyy@bowwlaw.com
Jonathan Y. Yu
Broening Oberg Woods & Wilson
2800 N. Central Avenue, Suite 1600
Phoenix, AZ 85004
Re:

Human Rights Defense Center/The GEO Group, Inc: Right to Inspect and Copy
Records Pursuant to the Arizona Public Records Law

Dear Mr. Yu:
This firm represents the Human Rights Defense Center ("HRDC") in connection with
its request to inspect and copy certain public records in the custody of The GEO Group, Inc.
("GEO"). As you know, that request was submitted on September 23, 2024 by HRDC's
Public Records Manager Tiffany Hollis to GEO pursuant to the Arizona Public Records
Law, A.R.S. § 39-121 et seq. (the "Request"). On HRDC's behalf, I write to secure GEO's
prompt and full compliance with HRDC's Request.
·
Your October 28, 2024 correspondence to Ms. Hollis incorrectly states that the
Arizona Public Records Law does not apply to GEO because it is not an officer or public
body under A.R.S. § 39-121.01. However, as explained in more detail below, the Public
Records Law does apply to GEO because it is a custodian of public records related to the
performance of essential governmental functions within the meaning of the statute, and it is
therefore duty-bound to comply with this Arizona law. HRDC calls upon GEO to provide

access to, or copies of, the requested public records within ten business days of its receipt of
this letter.
Factual Background
On September 23, 2024, Ms. Hollis sent, on behalf of HRDC, a request for records
pursuant to the Arizona Public Records Law to GEO's headquarters office. A true and
correct copy of the Request is attached as Exhibit A for ready reference.
The Request seeks:

Jonathan Y. Yu
November 26, 2024
Page2

records in all claims or lawsuits brought against The GEO Group, Inc., and/or
any of its employees or agents in which payments totaling $1,000 or more
were disbursed from The GEO Group, Inc., and/or those entities' insurers to
resolve claims against it between September 23, 2014 to the present. These
payments include but are not limited to settlements, damages, attorney fee
awards, and sanctions, irrespective of the identity of the plaintiff or claimant.
Specifically, HRDC requests the following records, provided in electronic
native format where possible, and otherwise in electronic fmmat:

1. Records sufficient to show:
•

The name of all parties involved;

•

The case or claim number;

•

The jurisdiction in which the case or claim was brought (e.g., US

District Court for the District of Arizona, Arizona Supreme Court,
etc.);
•

The date of resolution;

•

Payments, including legal fees, in the resolution and to whom it was paid;

2. For each case or claim detailed above:
•

The complaint or claim form and any amended versions;

•

The verdict form, final judgment, settlement agreement, consent decree,
or other paper that resolved the case.

Ex. A at 1-2. The Request noted that HRDC publishes the monthly magazines Prison Legal
News and Criminal Legal News and therefore seeks the records as a member of the news
media, not for a commercial purpose. Id. at 2.
On October 28, 2024, you responded to Ms. Hollis and declined to provide any of the
requested public records, asserting that "[b]ecause GEO is a private corporation, it is not
subject to the requirements or enforcement mechanisms of the [Public Records Law]" (the
"Denial Letter"). A true and correct copy of the Denial Letter is attached as Exhibit B for
ready reference. You also stated in the Denial Letter that "the HRDC's [R]equest may also
seek confidential, private, or personal records/infmmation beyond the scope of Title 39."
Ex.Bat l.

Jonathan Y. Yu
November 26, 2024
Page 3

As of this writing, HRDC has not received any further response to the Request.
The Arizona Public Records Law
GEO's refusal to provide these records violates the Arizona Public Records Law,
which provides a broad right of public inspection and copying of public records. The statute
"'defines 'public records' broadly and creates a presumption requiring the disclosure of
public documents."' Lake v. City of Phoenix, 222 Ariz. 547, 549, ,r 8 (2009) (quoting Griffis
v. Pinal County, 215 Ariz. 1, 4, ~ 11 (2007)). All records with "a 'substantial nexus' to
government activities qualify as public records, and the nature and purpose of a document
determines whether it is a public record." Id. Arizona's statutory and case law articulate a
"strong policy favoring open disclosure and access." Cox Ariz. Publ 'ns v. Collins, 175 Ariz.
11, 14 (1993). In applying the statute, "[ d]oubts should be resolved in favor of disclosure."
Ariz. Op. Att'y Gen. No. R75-781 at 145 (1975-76).
Moreover, "[t]he requested records are no less public records simply because they are
in the possession of a third patty," in this instance, GEO. Fann v. Kemp, No. 1 CA-SA 210141, 2021 Ariz. App. Unpub. LEXIS 834, at *12, ,r 23 (App. Aug. 19, 2021), review denied
sub nom. Fann v. Kemp/American Oversight, No. CV-21-0197-PR, 2021 Ariz. LEXIS 333
(Sept. 14, 2021); see also Cyber Ninjas, Inc. v. Hannah, No. l CA-SA 21-0173, 2021 Ariz.
App. Unpub. LEXIS 1107, at *4, ,r 9 (App. Nov. 9, 2021), review denied, No. CV-21-0281PR, 2022 Ariz. LEXIS 1 (Jan. 4, 2022) (same). As you may be aware, both of these cases
involved public records in the possession of Cyber Ninjas, the company the Arizona Senate
hired to perform an audit of the ballots cast in Maricopa County in the 2020 presidential
election. Id. at * 1~3, ,r,r 2-4. The Arizona Court of Appeals ruled that Cyber Ninjas was the
"custodian" of those public records under the Public Records Law. Id. at *6-8, ,r,r 15-16.
As the Court of Appeals explained, A.R.S. § 39-121.0l(D)(l) envisions that
requests for public records are made to the "custodian" of those records, and that the
custodian must "promptly furnish" those records. Id. at *6, ,r 15. In other words, the entity
that possesses or maintains control over public records is a custodian subject to the
requirements of the Public Records law, regardless of whether that entity is a public body,
public official or government contractor (and, for that matter, whether the custodian holds
the records in digital form in the "cloud"). Id. Cf Lake, 222 Ariz. at 549 (2009) (when a
public agency maintains records in an electronic format, "the electronic version of the
record, including any embedded metadata, is subject to disclosure under our public records
law"). Indeed, the courts have held that the custodian of records is a proper defendant in a
special action to enforce the public's rights to access records of governmental activities.
Cyber Ninjas, 2021 Ariz. App. Unpub. LEXIS 1107, at *6-8, ,r,r 15-17.

Jonathan Y. Yu
November 26, 2024
Page 4

Notably, in Cyber Ninjas the Arizona Court of Appeals rejected the precise argument
you make in the Denial Letter - that, as a private corporation, Cyber Ninjas was not subject
to the Public Records Law. Id. at *6-11, 11 13-20. Rather, Cyber Ninjas was the custodian
of public records and subject to the Public Records Law's requirements because it created
and maintained those records in the course of its performance of an important governmental
function the Arizona Senate had "entirely outsourced" to it. Id. at *9-10, ~ 19.
GEO is the custodian of the records HRDC seeks because it possesses those records
as part of its performance of a "core governmental function," Fann, 2021 Ariz. App. Unpub.
LEXIS 834, at *13, 1 24 - that is, operating prisons for the Arizona Department of
Corrections, Rehabilitation and Reentry. See, e.g., Brinkv. Herron, No. CV 20-01097-PHXSPL (DMF), 2020 U.S. Dist. LEXIS 162680, at * 12 (D. Ariz. Aug. 7, 2020) ("The GEO
Group Incorporated performs a public function, i.e., operating and managing a prison,"). As
with the state Senate in Cyber Ninjas, ADCRR has entirely outsourced performance of the
impmtant governmental function of operating prisons to GEO with respect to the facilities
GEO operates.
As noted above, under Arizona law, all records with a substantial nexus to
government activities are presumptively public. See Lake, 222 Ariz. at 549, 1 8. The
records requested by HRDC, therefore, are precisely the kinds of records subject to release
under the Public Records Law, and as custodian of those records, GEO has a statut01y duty
to provide them upon request. Cyber Ninjas, 2021 Ariz. App. Unpub. LEXIS 1107, at *8-9,
1,r 18-19. Although a custodian may withhold public records on the basis of privacy,
confidentiality or the best interests of the state when those interests outweigh the public's
right of inspection, the burden remains on the records custodian to overcome the
presumption that records are public. Cox, 175 Ariz. at 14.
The Requested Information Should Be Released Without Fmther Delay
Arizona law subjects GEO to an award of attorneys' fees and costs where a legal
challenge is necessary to combat a wrongful denial of a public records request. Carlson, 141
Ariz. at 491; A.R.S. § 39-121.02(B) ("The court may award attorney fees and other legal
costs that are reasonably incurred in any action under this article if the person seeking public
records has substantially prevailed."); see also Arpcdo v. Citizen Publishing Co., 221 Ariz.
130, 134, i!113-14 (App. 2008) (custodian of records or third party responsible for denial of
access to public records can be liable to reimburse prevailing party's reasonable attorneys'
fees and costs). GEO has not shown a lawful reason for withholding the requested materials,
and HRDC is entitled to prompt compliance with its requests. A.R.S. § 39-121.0l(E)
(access deemed denied where custodian fails to "promptly" respond).

Jonathan Y. Yu
November 26, 2024
Page 5

This letter is intended to give GEO one further opportunity to release the requested
records as Arizona law requires - promptly. Accordingly, HRDC requests that you provide
the requested records by no later than ten business days after the date of this letter (i.e., by
December 12, 2024). HRDC reserves all rights to take any and all further steps it deems
appropriate to secure the requested records pursuant to the Arizona Public Records Law. Of
course, we would prefer to resolve this matter amicably and constructively with your prompt
cooperation.
We look forward to hearing from you.
Sincerely,

I

. --·----··••.·

>U;--~!v-·----··-----~~-Matthew E. 1';.~ley
Enclosures
CC: HRDC
Intraoffice copy to David Bodney

Exhibit 4

LAW OFFICES

BROENING OBERG WOODS & WILSON
Professional Corporation

JONA.THAi'I

Address:
2800 N. Central Avenue, Suite 1600
Phoeni...:, AZ 85004
(602) 271-7700

Y. Yu

(602) 271-7724
iyy@bowwlaw.com

https:l/www.bO\vwlaw.com

December 30, 2024
Email
HUMAN RIGHTS DEFENSE CENTER
c/o Matthew E. Kelley
kelleyM@ballardspahr.com
Re: Human Rights Defense Center - Response to Request to Inspect and Copy Records
Mr. Kelley:
As you know, this firm represents The GEO Group, Inc. ("GEO") with respect to the
Human Rights Defense Center's ("HRDC") September 23, 2024 letter requesting records and
information pursuant to Arizona's Public Records Law ("PRL"). GEO has reviewed your
November 26, 2024 response letter following GEO's initial declination, and for multiple reasons,
again respectfully declines to produce the records requested.
First, HRDC's request is wildly overbroad. It seeks a decade's worth of "records in all
claims or lawsuits brought against The GEO Group, Inc.," regardless of their nature, underlying
facts/activities, or geographic location/venue in which the claim arose. As a result, the request as
drafted encompasses records that do not have a "substantial nexus" to "a government agency's
activities" and are therefore not subject to the PRL. See Potter v. Heredia, 1529562 * 1, *3 (App.
2024) ("Further, the 'nature and purpose of the document' detennine its status as a public
record ... mere possession of a document by a public officer or agency does not by itself make
that document a public record... "). Indeed, HRDC has identified no "government activity" to
which the requested documents relate, let alone a "substantial nexus" to that activity.
Accordingly, the requested documents do not quality as "public records" under the PRL, and for
that reason alone, GEO's denial was appropriate.
Fm1hermore, GEO maintains it is not a public body or custodian subject to the
requirements of the PRL. In the Cyber Ninjas decision upon which HRDC relies in support of its
request, the Arizona Supreme Court explained that its application of the PRL to certain private
entities performing certain governmental functions was narrow:
[O]ur rnling does not mean that constrnction companies and officesupply vendors will have to rush to establish new "public records"
departments. "Only documents with a substantial nexus to
government activities qualify as public records." Here, the
Senate's decision to undertake the audit was premised on its
oversight authority, an important legislative function, which it

SERVING OUR CLIENTS AND COMMUNITY SINCE 1978

Page2

then entirely outsourced to Cyber Ninjas and its subvendors.
Nothing in the superior court's order or in this decision
imposes obligations under the PRL on contractors that provide
ordinary goods or services to the government.

Cyber Ninjas, Inc. v. Hannah, 2021 WL 5183944 *1, *2 (2021) (internal citations omitted)
(emphasis added). In Cyber Ninjas, the contractor in question was commissioned by the Arizona
legislature to audit the 2020 general election pursuant to the legislature's oversight authority "an important legislative function." HRDC has not identified a comparable "important
legislative function" being performed by GEO to support its requests here. No Arizona court has
ever held the operation of correctional facilities is a public function for purposes of the PRL 1•
Indeed, the Arizona Department of Corrections Rehabilitation and Reentry's decision to privatize
its correctional medical system following a 2012 federal class action suit establishes that
operating a correctional facility is no longer an exclusively governmental - let alone "an
important legislative" - function.
Finally, HRDC's request seeks records subject to private confidentiality agreements
negotiated between GEO and individual litigants/claimants. GEO has an interest in maintaining
the confidentiality and privacy of its agreements with other patties, and cannot comply with
HRDC's request without violating the terms of these private agreements. As such, GEO's
interest in in maintaining confidentiality outweighs HRDC's interest in disclosure. See Judicial
Watch, Inc. v. City of Phoenix, 228 Ariz. 393, 395 -96 (App. 2013).
For the foregoing reasons, GEO respectfully declines the HRDC's request.

Very truly yours,

JONATHAN Y. YU
For the Firm

l In Brink, the Arizona District Court merely acknowledged GEO perfonned a traditional public function for
purposes of imposing civil liability under § 1983 - not the PRL.

Exhibit 5

Cyber Ninjas, Inc. v. Hannah
Court of Appeals of Arizona, Division One
November 9, 2021, Filed
No. 1 CA-SA 21-0173
Reporter
2021 Ariz. App. Unpub. LEXIS 1107 *; 2021 WL 5183944

CYBER NINJAS, INC., Petitioner, v. THE
HONORABLE JOHN HANNAH, Judge of the
SUPERIOR COURT OF THE STATE OF
ARIZONA, in and for the County of MARICOPA,
Respondent Judge, PHOENIX NEWSPAPERS,
INC., an Arizona corporation, and KA THY
TULUMELLO; ARIZONA STATE SENATE, a
public body of the State of Arizona; KAREN
FANN, in her official capacity as President of the
Arizona State Senate; WARREN PETERSEN, in
his official capacity as the Chairman of the Arizona
Senate Committee on the Judiciary; SUSAN
ACEVES, in her official capacity as Secretary of
the Arizona State Senate, Real Parties in Interest.

Stay denied by, Without prejudice, Request denied
by Cyber Ninjas, Inc. v. Hannah, 2021 Ariz. LEXIS
415 (Ariz., Dec. 1, 2021)

Notice: THIS DECISION IS SUBJECT TO
FURTHER APPELLATE REVIEW. MOTIONS
FOR RECONSIDERATION OR PETITIONS FOR
REVIEW TO THE ARIZONA SUPREME
COURT MAY BE PENDING. COUNSEL IS
CAUTIONED TO MAKE AN INDEPENDENT
DETERt\1INATION OF THE STATUS OF THIS
CASE.
NOTICE: NOT FOR OFFICIAL PUBLICATION.

CyberNinjas, Inc. v. Warner, 2021 Ariz. LEXIS
408 (Ariz., July 29, 2021)

UNDER ARIZONA RULE OF THE SUPREME
COURT 11 l(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY
AS AUTHORIZED BY RULE.

Subsequent History: Later proceeding at Cyber
Ninjas, Inc. v. Hannah, 2021 Ariz. LEXIS 416
(Ariz., Nov. 24, 2021)
Stay denied by, Without prejudice Cyber Ninjas,
Inc. v. Hannah, 2021 Ariz. LEXIS 407 (Ariz., Nov.
30, 2021)

Review denied by, Without prejudice Cyber Ninjas
v. Hannah, 2022 Ariz. LEXIS 1 (Ariz., Jan. 4,
2022)
Stay denied by, Without prejudice Cyber Ninjas,
Inc. v. Hannah, 2022 Ariz. LEXIS 386 (Ariz., Jan.

6, 2022)
Prior History: [*1] Petition for Special Action
from the Superior Court in Maricopa County. No.
LC2021-000180-00L The Honorable John Hannah,
Judge.

Disposition: JURISDICTION
RELIEF DEN1ED.

ACCEPTED;

Counsel: Wilenchik & Bartness, P.C., Phoenix, By
Dennis I. Wilenchik, John D. Wilenchik, Jordan C.
Wolff, Counsel for Cyber Ninjas, Inc.
Ballard Spahr LLP, Phoenix, By David Jeremy
Bodney, Craig Hoffman, Matthew E. Kelley,
Counsel for Real Parties in Interest Phoenix
Newspapers, Inc. and Kathy Tulumello.
Statecraft PLLC, Phoenix, By Ko1y A. Langhofer,
Thomas J. Basile, Counsel for Real Parties in
Interest Arizona State Senate, Karen Fann, Wan-en
Petersen, and Susan Aceves.

Judges: Judge Maria Elena Cruz delivered the
decision of the Court, in which Acting Presiding
Judge David B. Gass and Judge Randall M. Howe

Page 2 of5

2021 Ariz. App. Unpub. LEXIS 1107, *1

joined.
Opinion by: Maria Elena Cruz

Opinion

in its possession, custody, or control. Cyber Ninjas
then petitioned for special action seeking relief
from: (1) the superior court's denial of its motion to
dismiss and (2) the order to produce (*31 any
public records directly to PNI. At Cyber Ninjas'
request, we temporarily stayed the superior comi's
order that it produce all documents directly to PNL 1

MEMORANDUM DECISION
CRUZ, Judge:

SPECIAL ACTION JURISDICTION

P5 Special action review is generally appropriate if
a party has no "equally plain, speedy, and adequate
remedy by appeal." Ariz. R.P. Spec. Act. l(a); see
generally Sw. Gas Cmp. v. Irwin, 229 Ariz. 198,
201, ,r,r 5-7, 273 P.3d 650 (App. 2012). Our
decision to accept special action jurisdiction is
discretionary and is "appropriate in matters of
statewide importance, issues of first impression,
cases involving purely legal questions, or issues
that are likely to arise again." State v. Superior
FACTUAL AND PROCEDURAL HISTORY
Court (Landeros), 203 Ariz. 46, 47, ,r 4, 49 P.3d
P2 The Arizona Senate initiated an audit of 1142 (App. 2002).
voting [*2] equipment used and ballots cast in
Maricopa County in the 2020 general election, and P6 Here, the issues raised in the petition are pure
it retained Cyber Ninjas, a private corporation, to questions of law and are of statewide importance.
serve as its primary vendor for that audit. Cyber Accordingly, we accept special action jurisdiction.
Ninjas then hired multiple private companies to
assist it in the audit.
DISCUSSION
P3 In June 2021, the Arizona Republic, published
by Phoenix Newspapers, Inc., served a request on P7 This case presents a question of statutmy
Cyber Ninjas to inspect documents relating to the interpretation, which we review de novo. lvfcHale v.
audit. The newspaper asserted the documents were McHale, 210 Ariz. 194, 196, ,r 7, 109 P.3d 89 (App.
public records subject to inspection under Arizona's 2005),
Public Records Law ("PRL"), Chapter 1 of Title 39,
PS The PRL requires "[a]ll officers and public
Arizona Revised Statutes ("A.R.S"). Cyber Ninjas
bodies" to "maintain all records . . . reasonably
did not produce any records to the Arizona
Republic in response to its request.

·Pl Petitioner Cyber Ninjas, Inc. ("Cyber Ninjas")
seeks relief from the superior court's order denying
its motion to dismiss the special action complaint
filed against it by Phoenix Newspapers, Inc. and
Kathy Tulumello (collectively 11 PNI 11 ). For the
following reasons, we accept jurisdiction but deny
relief.

P4 PNI then filed a statutory special action under
the PRL against Cyber Ninjas, the Senate, Senate
President Karen Fann and other Senate officials.
Cyber Ninjas moved to dismiss the complaint,
which the superior court denied. Citing A.R.S. §
39-121.02, the court ordered Cyber Ninjas to
produce copies of public records related to the audit

1 The Senate is not a party to this special action proceeding from the
superior court's ruling against Cyber Ninjas. We note that, as a
consequence of ourrnling in Fann v. Kemp, l CA-SA 21-0141, 2021
Ariz. App. Unpub. LEXIS 834, 2021 \VL 3674157 (Ariz. App. Aug.
19, 2021) (mem. decision), the Senate has formally asked Cyber
Ninjas to produce to the Senate certain documents relating to the
audit that remain in Cyber Ninjas' possession. Per the parties'
agreement, we ordered Cyber Ninjas to promptly begin processing
the Senate's request to disclose those documents to the Senate for it
to review on an ongoing basis,

Page 3 ofS
2021 Ariz. App. Unpub. LEXIS 1107, *3

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.RS. § 39-121.0l(B). Arizona law imposes
additional duties on those responsible for public
records. [*4] For example, "[e]ach public body
shall be responsible for the preservation,
maintenance and care of that body's public records,
and each officer shall be responsible for the
preservation, maintenance and care of that officer's
public records." Each public body also has a duty
"to carefully secure, protect and preserve public
records from deterioration, mutilation, loss or
·destruction .... " A.R.S. § 39-121.0l(C).
P9 We recently addressed a request for audit
documents made to the Arizona Senate under the
PRL. Fann, 1 CA-SA 21-0141, 2021 Ariz. App.
Unpub. LEXIS 834, [WL] at *4-5, ,i,i 23-25. In that
case, we rejected the Senate's contention that
records relating to the audit that remain in Cyber
Ninjas' possession are not subject to the PRL and
we mled the Senate must obtain from Cyber Ninjas
any records that were requested under the PRL. Id.
at ,i,i 21-25 (holding Cyber Ninjas was the Senate's
agent in performing an "important legislative
function"). To be clear, and because Cyber Ninjas
continues to argue to the contrary, we reiterate our
holding in Fann that documents relating to the audit
are public records subject to the PRL even if they
are in the possession of Cyber Ninjas rather than
the Senate. 2021 Ariz. App. Unpub. LEXIS 834,
[WL] *4, 123.

A. In this article, unless the context otherwise
requires:
1. "Officer" means any person elected or
appointed to hold any elective or
appointive office of any public body and
any chief administrative officer, head,
director, superintendent or chairman of any
public body.
2. "Public body" means this state, any
county, city, town, school district, political
subdivision or tax-supported district in this
state, any branch, department, board,
bureau, commission, council or committee
of the foregoing, and _any public
organization or agency, supported in whole
or in part by monies from this state or any
political subdivision of this state, or
expending monies provided by this state or
any political subdivision of this state.
A.RS.§ 39-121.0l(A)(l), (2).
P12 Cyber Ninjas has perfonned a public function
in undertaking the audit and was paid with public
funds to do so. Nevertheless, although the Senate
delegated [*6] its legislative responsibilities with
respect to the audit to Cyber Ninjas, Cyber Ninjas
is not a "public body" or "officer" as the PRL
defines those terms. Neither definition in A.R.S. §
39-121.01 encompasses a private contractor, and
Cyber Ninjas cannot fairly be characterized as
either. See supra ,i 11.

P 13 PNI also argues it may obtain relief against
Cyber Ninjas under the PRL because Cyber Ninjas
is the sole 11 custodian 11 of documents that are public
PIO Cyber Ninjas also argues it cannot be subject records subject to disclosure under the PRL. We
to suit under the PRL because it is [*5] not a public agree.
entity, an issue that, as PNI acknowledges, was not
before this court in Fann. In support of the superior P 14 As PNI contends, the PRL requires a
11
court's rnling, PNI first argues Cyber Ninjas is custodian" of public records to "promptly furnish"
subject to suit under the PRL because it is an requested records. A.R.S. § 39-121.0l(D)(l).
"officer" of the Senate or a "public body." We Although the PRL does not define "custodian," that
word commonly means "[a] person or institution
disagree.
that has charge or custody (of a child, property,
Pl I Section 39-121.0l(A) defines "Officer" and papers, or other valuables)," or "[s]omeone who
"Public body" as follows:
carries, maintains, processes, receives, or stores a

Page 4 of5

2021 Ariz. App. Unpub. LEXIS 1107, *6

digital asset." Black's Law Dictionary 483 (11th ed.
2019). 11 Custody 11 means 11 [t]he care and control of a
thing or person for inspection, preservation, or
security." Id.; W. Valley View Inc. v. Maricopa
Cnty. Sheriffs Office, 216 Ariz. 225, 229, ,r 16, 165
P.3d 203 (App. 2007).
P15 To the extent Cyber Ninjas is in sole
possession of auditrelated public records because of
its contract with the Senate, Cyber Ninjas has
become the custodian of those records [*7] under
the PRL. And as to those records, Cyber Ninjas has
assumed the obligations the PRL assigns to a
11 custodian 11 of public records. Under the PRL, a
person seeking public records must make its
request to the 11 custodian 11 of the records. A.R.S. §
39-121.0l(D)(l). "Access to a public record is
deemed denied if a custodian fails to promptly
respond to a request for production of a public
record." A.RS.§ 39•121.0l(E).
P16 In the event a custodian of public records
refuses a request for those records, the person
denied access "may appeal the [custodian's] denial
through a special action in the superior court,
pursuant to the rules of procedure for special
actions against the officer or public body." A.R.S. §
39-121.02(A). As noted, PNI's special action
complaint also properly named the Senate and
various Senate officials. Although the PRL does not
specify that a suit for damages may be brought
against a custodian of public records, see A.RS. §
39-121.02(C), in these circumstances, nothing
prevents a party from joining a custodian ofrecords
as a party to a statutory special action under the
PRL. See Ariz. RP. Spec. Act. 2(a)(l), (b) (court
may order joinder of persons2 other than the "body,
officer or person against whom relief is sought.").
See also A1paio v. Citizen Publ'g Co., 221 Ariz.
130, 133, ,r 10 n.4, 211 P.3d 8 (App. 2008); Gerow
v. Covill, 192 Ariz. 9, 14, ii 21, 960 P.2d 55 (App.
1998) (citing Ariz. R. Civ. P. 19(a)(l)(A) (where
feasible, joinder may be required (*8] of a person

isection 1-215(29) defines "person'' as "a corporation, company,
partnership, firm. association or society, as well as a natural person."

"if, in that person1s absence, the court cannot accord
complete relief among existing parties.'1)).
Pl 7 Here, Cyber Ninjas was properly joined as a
necessary party in PNI's special action because,
even though it is a private company, as a contractor
and agent of the Senate, it is alleged to be the sole
custodian of records pertaining to the audit that are
subject to disclosure under the PRL. In other words,
joinder of Cyber Ninjas is necessary only because
the Senate does not have the public records that are
in Cyber Ninjas' custody. Under the unusual facts
of this case, the custodian necessarily must be
joined. Cyber Ninjas would not be a necessary
party if it had turned over the public records
requested by the Senate-it is a necessary party by
its own actions.
P18 To hold otherwise would circumvent the PRL1s
purpose, which 11 exists to allow citizens to be
infotmed about what their government is up to."
Scottsdale Unified Sch. Dist. 48 of Maricopa Cnty.
v. KPNX Broad. Co., 191 Ariz. 297, 302-03, ,I 21,
955 P.2d 534 (1998) (citation and internal quotation
marks omitted). We noted in Fann that "[t]he
requested records are no less public records simply
because they are in the possession of a third patty,
CyberNinjas. 11 1 CA-SA 21-0141, 2021 Ariz. App.
Unpub. LEXIS 834, [WL] at *4, 1 23. In Forum
Publishing Co. v. City of Fargo, 391 N.W.2d 169
(N.D. 1986), the city of Fargo contracted a
consulting firm to assist in the search of (*9] a new
city chief of police. Id. at 170. A publishing
company obtained a writ of mandamus from the
District Court ordering the city to deliver
applications and records disclosing the names and
qualifications of applicants. Id. The city appealed.
Id. In affirming the issuance of the writ of
mandamus the Notih Dakota Supreme Court aptly
observed:
We do not believe the open-record law can be
circumvented by the delegation of a public duty
to a third party, and these documents are not
any less a public record simply because they
were in possession of PDI. ... [The] purpose of

Page 5 ofS
2021 Ariz. App. Unpub. LEXIS 1107, *9

the open-record law would be thwarted if we
were to hold that documents so closely
connected with public business but in the
possession of an agent or independent
contractor of the public entity are not public
records.

Id. at 172.
Pl9 Cyber Ninjas argues that the logic of the
superior comt's order would open the files of all
government contractors to public inspection. We
need not decide the extent to which the PRL applies
to businesses that contract with the government to
provide ordinary goods or services that government
regularly purchases for the public. Contrary to
Cyber Ninjas1 contention, our ruling does not mean
that construction [*10] companies and officesupply vendors will have to rush to establish new
"public records" departments. "Only documents
with a substantial nexus to government activities
qualify as public records." Lake v. City of Phoenix,
222 Ariz. 547, 549, ,r 8, 218 P.3d 1004 (2009)
(citation and internal quotation marks omitted).
Here, the Senate's decision to undertake the audit
was premised on its oversight authority, an
important legislative function, which it then
entirely outsourced to Cyber Ninjas and its
subvendors. Nothing in the superior comt's order or
in this decision imposes obligations under the PRL
on contractors that provide ordinary goods or
services to the government.
P20 In sum, the superior court did not err in
determining that PNI properly joined Cyber Ninjas,
the custodian of audit records subject to the PRL,
when it filed a statutory special action to compel
disclosure of those records. As noted above, we
understand the Senate has asked Cyber Ninjas to
tum over to the Senate certain documents related to
the audit. To the extent Cyber Ninjas fails to deliver
to the Senate any audit documents requested by
PNI, it must 11 promptly furnish" those records
directly to PNI. See A.R.S. § 39-121.0l(D)(l). As
the superior court ordered, the Senate and Cyber
Ninjas may confer about [*11] which public

records in the possession, custody, or control of
either party should be withheld based on a
purported privilege or for any other legal reason.
P21 PNI requests attorneys1 fees and costs incurred
in responding to the petition under A.RS. §§ 39121.02(B), 12-341, -342, and Ariz. RP. Spec. Act.
4(g). Because PNI has substantially prevailed, we
award it its reasonable costs and attorneys' fees
upon compliance with ARCAP 21 and Ariz. R.P.
Spec. Act. 4(g).

CONCLUSION
P22 For the foregoing reasons we accept
jurisdiction, deny relief and lift the stay of
proceedings previously issued regarding the
superior court's August 24, 2021 order.

End of Duculllent

Exhibit 6

Fann v. Kemp
Court of Appeals of Arizona, Division One
August 19, 2021, Filed
No. 1 CA-SA 21-0141
Reporter
2021 Ariz. App. Unpub. LEXIS 834 *; 2021 WL 3674157

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.

Notice: THIS DECISION IS SUBJECT TO
FURTHER APPELLATE REVIEW. MOTIONS
FOR RECONSIDERATION OR PETITIONS FOR
REVIEW TO THE ARIZONA SUPREME
COURT MAY BE PENDING. COUNSEL IS
CAUTIONED TO MAKE AN INDEPENDENT
DETERL\11INATION OF THE STATUS OF THIS
CASE.
NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME
COURT 11 l(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY
AS AUTHORIZED BY RULE.

Subsequent History: Later proceeding at Fann v.
Kemp, 2021 Ariz. LEXIS 413 (Ariz., Aug. 24,
2021)

(Ariz., Sept. 14, 2021)
Decision reached on appeal by Fann v. Kemp, 252
Ariz. 508,505 P.3d 301, 2022 Ariz. App. LEXIS
17, 2022 WL 189825 (Ariz. Ct. App., Jan. 21,
2022)

Prior History: [*l] Petition for Special Action
from the Superior Court in Maricopa County. No.
CV2021-008265. The Honorable Michael Kemp,
Judge.
Am. Oversight v. Fann, 2021 Ariz. Super. LEXIS
1184 (Ariz. Super. Ct., July 14, 2021)

Disposition: JURISDICTION
RELIEF DENIED.

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.

Judges: Acting Presiding Judge Maria Elena Crnz
delivered the decision of the Comi, in which Judge
Michael J. Brown and Judge Jennifer B. Campbell
joined.

Opinion by: Maria Elena Cruz

Later proceeding at Fann v. Kemp, 2021 Ariz.
LEXIS 412 (Ariz., Aug. 26, 2021)

Opinion

Motion denied by, Without prejudice Fann v.
Kemp, 2021 Ariz. LEXIS 414 (Ariz., Aug. 30,
2021)

MEMORANDUM DECISION

Review denied by, Stay lifted by Fann v.
Kemp/American Oversight, 2021 Ariz. LEXIS 333

ACCEPTED;

CRUZ, Judge:

Page 2 of6

2021 Ariz. App. Unpub. LEXIS 834, "'1

Pl In this special action, Petitioners Karen Fann,
Warren Petersen, and the Arizona Senate
(collectively, the 11 Senate 11 ) seek a writ of
prohibition or other special action relief to prevent
the Senate from being compelled by the superior
court to disclose documents related to its audit of
the November 2020 general election. For the
following reasons, we accept jurisdiction and deny
relief.

court denied the motion in a July 14, 2021 minute
entry.

P6 American Oversight lodged a proposed order
that memorialized the court's July 14 minute entry
and directed the Senate to disclose records related
to the audit, including those in possession of Cyber
Ninjas and its sub-vendors. The Senate objected,
arguing the order would improperly serve as a final
judgment on the merits; the case required further
discovery; and the Senate was legislatively immune
from the suit. The superior court rejected the
FACTUAL AND PROCEDURAL HISTORY
Senate's arguments in an August 2, 2021 minute
P2 The Arizona Senate initiated an audit of voting entry. The court entered the proposed order,
equipment used and ballots cast in Maricopa directing the Senate to immediately disclose the
County relating to the 2020 general election, and it records related to the audit.
retained a private corporation, Cyber Ninjas, to
serve as [*2] its primary vendor in conducting the P7 The Senate subsequently filed this special action
audit. Cyber Ninjas then hired multiple sub-vendors petition, as well as a motion to stay the August 2
order, which we granted pending resolution of this
to assist in the work, also private companies.
petition.
P3 In April and May 2021, Real Party in Interest
American Oversight submitted public record
requests to the Senate for documents related to the SPECIAL ACTION JURISDICTION
audit. The Senate produced about 60 pages of
documents but asse11ed it would not produce P8 Special action review is generally appropriate
documents in the possession and custody of Cyber when there is no "equally plain, speedy, and
adequate remedy by appeal. 11 Ariz. RP. Spec. Act.
Ninjas or any of its sub-vendors.
l(a); see generally Sw. Gas C01p. v. Irwin, 229
P4 American Oversight filed a complaint and order Ariz. 198, 201, ,i,i 5-7, 273 P.3d 650 (App. 2012).
to show cause under Arizona's Public Records Law Our decision to accept special action jurisdiction is
("PRL"), Arizona Revised Statute ( 11 A.R.S 11 ) section discretionary, and it is "appropriate in matters of
39-121, et seq., to compel production of the statewide importance, issues of first impression,
documents related to the audit, including those in cases involving purely [*4] legal questions, or
the possession or custody of Cyber Ninjas and its issues that are likely to arise again." State v.
sub-vendors. Over the following several weeks, the Superior Court (Landeros), 203 Ariz. 46, 47, ,r 4,
Senate produced about 900 more pages of records 49 P.3d 1142 (App. 2002).
to American Oversight, and the Senate informed
American Oversight that it was currently reviewing P9 Here, the issues raised in the petition are pure
questions of law and are of statewide importance.
an additional 15,000 documents to disclose.
Accordingly, we accept special action jurisdiction.
PS The Senate then moved to dismiss American
Oversight's complaint, arguing any audit records in
possession of Cyber Ninjas or its sub-vendors and DISCUSSION
agents are not subject to the PRL. The Senate also
PlO The PRL provides: "[p]ublic records and other
argued that its compliance with the PRL is a
matters in the custody of any officer shall be open
nonjusticiable political question. [*3] The superior
to inspection by any person at all times during

Page 3 of6
2021 Ariz. App. Unpub. LEXIS 834, *4

office hours. 11 A.RS. § 39-121. Section 39121.01 (B) requires "[a]ll officers and public
bodies" 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.' 1
Further, '1[e]ach public body shall be responsible
for the preservation, maintenance and care of that
body's public records, and each officer shall be
responsible for the preservation, maintenance and
care of that officer1s public records,11 and it is 11 the
duty of each such body to carefully secure, protect
and preserve public records from deterioration,
mutilation, loss or destruction .. , ." A.R.S. § 39121.0l(C). Section 39-121.0l(A) defines 11 Officer"
and 11 Public body" as follows:
A. In this article, unless the context otherwise
requires:
1. 11 Officer 11 (*5] means any person elected
or appointed to hold any elective or
appointive office of any public body and
any chief administrative officer, head,
director, superintendent or chairman of any
public body.
2. "Public body" means this state, any
county, city, town, school district, political
subdivision or tax-supp01ted district in this
state, any branch, department, board,
bureau, commission, council or committee
of the foregoing, and any public
organization or agency, supported in whole
or in part by monies from this state or any
public subdivision of this state, or
expending monies provided by this state or
any political subdivision of this state.

39-121.02(C) (1'Any person who is wrongfully
denied access to public records pursuant to this
article has a cause of action against the officer or
public body for any damages resulting from the
denial."). [*6]

I. Legislative Immunity
P12 Petitioners first argue that they are
constitutionally immune from suit because 11 the
decision whether to release or withhold audit
records is a legitimate legislative function. 1'
Pl 3 Pursuant to the United States and Arizona
Constitutions, absolute legislative immunity
protects legislators from civil and criminal liability
for statements made during formal legislative
proceedings. 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."); U.S. Const. ait. I, § 6, cl. 1 (1 1[F)or any
Speech or Debate in either House, [senators and
representatives] shall not be questioned in any other
Place."). The protection has been extended to acts
beyond pure speech and debate and applies to
legislative acts that are 11 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. " Gravel v. United States, 408 U.S.
606, 625, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972);
see also .Nfesnard v. Campagnolo, _ Aiiz. _, _, ,r
15,489 P.3d 1189, 1194 (2021) (citation and
internal quotation marks omitted).

P14 However, legislators are not afforded absolute
Pl 1 The PRL fu1ther provides: ' [a]ny person who immunity [*7] for all acts that are "in any way
has requested to examine or copy public records related to the legislative process,'1 nor is legislative
pursuant to this article, and who has been denied immunity intended to make legislators "superaccess to or the right to copy such records, may citizens," immune from all responsibility. Mesnard,
appeal the denial through a special action in the _ Ariz. at_, ,r 14, 489 P.3d at 1194; United States
superior court, pursuant to the rules of procedure v. Brewster, 408 U.S. 501, 516, 92 S. Ct. 2531, 33
for special actions against the officer or public L. Ed. 2d 507 (1972). As our supreme court has
body. 11 A.RS. § 39-12l.02(A); see also A.R.S. § noted, the concept of legislative immunity was
1

Page 4 of6
2021 Ariz. App. Unpub. LEXIS 834, *7

intended "to shield individual officials from the public's right to access the records, the
personal liability for their legislative acts," and "[i]t legislature can refuse disclosure. Id. However, the
has nothing to do with shielding goverrnnental legislature is not afforded a blanket exemption from
entities from challenges to claimed illegal actions." compliance with the PRL, nor is it exempt from
State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 lawsuits contesting a denial of access to public
Ariz. 127, 134,, 28,476 P.3d 307 (2020).
records.
PIS The Senate, relying on Mesnard, argues the
legislature's decision whether to release documents
under the PRL is a legislative act, protected by
absolute immunity. See Mesnard, _ Ariz. at _, ,
21,489 P.3d at 1195. But Mesnard concluded that a
legislator's disclosure of a public record under the
PRL was a legislative function that afforded him
immunity from personal liability in a defamation
suit. Id. Consistent with Brnovich, legislative
immunity does not prevent this action against
legislators in their capacity as elected officials, or
the legislature, for its failure to comply with
statutory obligations. See Brnovich, 250 Ariz. at
134,, 28. The ability to appeal the denial of access
to public records is expressly authorized by A.R.S.
§ 39-121.02, and American Oversight "is not suing
officials for personal [*8] liability in their
individual capacities." Id. The legislature itself
enacted this statute, and it could have completely
exempted itself from disclosure requirements, like
its federal counterpaii, the Freedom of Information
Act. See 5 U.S.C. §§ 55l(l)(A), 552. But instead,
the legislature chose to include itself within the
definition of those officers and public bodies
subject to the PRL. See A.R.S. § 39-121.0l(A)(l),
(2).

P 16 This is not to say the legislature can never
properly refuse to disclose records under the PRL.
There are many statuto1y exemptions to the PRL.
See, e.g., A.R.S. §§ 41-1279.05, 49-1403.
Additionally, though there is a presumption in favor
of disclosing public records, this presumption can
be rebutted by a demonstration of "confidentiality,
privacy, or the best interests of the state."
Scottsdale Unified Sch. Dist. No. 48 of Maricopa
Cnty. v. KPNX Broad. Co., 191 Ariz. 297, 300, ,19,
955 P.2d 534 (1998) (citation and internal quotation
marks omitted). If any of these interests outweigh

Pl7 The purpose of the legislative immunity
doctrine is to "support the rights of the people, by
enabling their representatives to execute the
functions [*9] of their office without fear of
prosecutions"; it does not exist to serve the personal
benefit of the legislators. Ariz. Indep. Redistricting
Comm'n v. Fields, 206 Ariz. 130, 137,, 17, 75 P.3d
1088 (App. 2003) (citation and internal quotation
marks omitted). And it does not exist to shield the
Senate from complying with a statute it has
enacted. Allowing 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. II. Custody
under the PRL
PIS The PRL "exists to allow citizens to be
infonned about what their government is up to."
Scottsdale Unified Sch. Dist. No. 48 of Maricopa
Cnty., 191 Ariz. at 302-03, , 21 (citation and
internal quotation marks omitted). "Arizona law
defines 'public records' broadly and creates a
presumption requiring the disclosure of public
documents." Griffis v. Pinal County, 215 Ariz. I, 4,
, 8, 156 P.3d 418 (2007). "Only documents with a
substantial nexus to government activities qualify
as public records, and the nature and purpose of a
document determine whether it is a public record."
Lake v. City of Phoenix, 222 Ariz. 547, 549, , 8,
218 P.3d 1004 (2009) (citation and internal
quotation marks omitted). We review de novo a
document's status as a public record, id. at , 7, but
defer to the superior court's findings of fact.
Phoenix Newspapers, Inc. v. Keegan, 201 Ariz.
344,347,, 11, 35 P.3d 105 (App. 2001).
P 19 Public officials must "make and maintain
records
reasonably
necessary
to
provide

Page5of6
2021 Ariz, App. Unpub. LEXIS 834, *9

knowledge [*10] of all activities they undertake in Law Dictionary 412 (8th ed. 2004)). Nothing in the
furtherance of their duties." Carlson v. Pima plain text of the PRL suggests that physical
County, 141 Ariz. 487, 490, 687 P.2d 1242 (1984). possession of the public records by the Senate is
As found by the superior court, "[t]he audit is an required. "It is the nature and purpose of the
important public function being conducted by the document, not the place where it is kept, which
Arizona Senate pursuant to the Arizona determines its status." Salt River Pima-Maricopa
Constitution and is an official legislative activity." Indian Cmty. v. Rogers, 168 Ariz. 531, 538, 815
There is no dispute that the audit is being P.2d 900 (1991) (citation omitted). 11 An agency has
conducted with public funds, and that Cyber Ninjas control over the documents when they have come
and its sub-vendors are agents of the Senate. 1 In into the agency's possession in the legitimate
this case the Senate has argued no exemption that, conduct of its official duties." Id. at 541-42
if properly recognized, would shield itself from the (citation and internal quotation marks omitted),
responsibility to inform the public of activities "Possession in this context has been interpreted to
regarding the audit.
mean both actual and constrnctive possession. [A]n
agency has constructive possession of records if it
P20 The superior court found that the Senate had has the right to control the records, either directly
"at least constructive possession" of its agents' or through another person. 02 Bd. of Pilot Comm 'rs
records and ordered it to produce specific public v. Superior Court, 218 Cal. App. 4th 577, 160
records generated in connection with the audit, Cal.Rptr.3d 285, 302 (Cal. Ct. App. 2013) (citation
including "[a]ll documents and communications and internal quotation marks omitted).
relating to the planning and execution of the audit,
all policies and procedures being used by the agents P23 Here, the Senate defendants, as officers and a
of the Senate Defendants, and all records disclosing public body under the PRL, have a [*12] duty to
specifically who is paying for and financing this maintain and produce public records related to their
legislative activity as well as precisely how much is official duties. This includes the public records
being paid. 11
created in connection with the audit of a separate
governmental agency, authorized by the legislative
P21 The Senate argues that it does not have branch of state government and performed by the
"custody"
of documents
"maintained
by Senate's agents. See A.R.S. § 39-121.0l(B). The
corporate [*11] vendors at their own headquarters requested records are no less public records simply
or in their own internal computer systems," and that because they are in the possession of a third party,
the superior court's determination that they had Cyber Ninjas. As the North Dakota Supreme Court
constructive possession of the records 1s aptly observed:
inconsistent with the PRL.
The City contends that even if these documents
P22 We disagree. "'[C]ustody' means '[t]he care and
are subject to the open-record law, PDI is an
control of a thing or person for inspection,
independent contractor and not an agent of the
preservation, or security,"' W. Valley View, Inc. v.
City, and the documents were in the possession
1vfaricopa Cnty. Sheriff's Office, 216 Ariz. 225,229,
of PDI. However, whether PDI is an
,i 16, 165 P.3d 203 (App. 2007) (quoting Black's
independent contractor or agent is not relevant .
. . . PDI was hired by the City to screen and
1 The

Senate admitted in its answer that Cyber Ninjas is the Senate's
"authorized agent." American Oversight does not argue that Cyber
Ninjas or its sub-vendors are officers or public bodies, de facto
officers or public bodies, or quasi-agencies. See State ex rel. Am. Ctr.
for Econ. Equal. v. Jackson, 53 N.E.3d 788, 793, ~ 15, 2015-Ohio4981 (Ohio Ct. App. 2015).

"The Arizona statute, adopted in 190 I, was taken from a California
provision. Consequently, cases arising under the California statute
are helpful to the interpretation of our law." Salt River, 168 Ariz. at
537 (citation omitted).

2

Page 6 of6
2021 Ariz. App. Unpub. LEXIS 834, *12

evaluate candidates for a public office. If the
City had undertaken this task without hiring
PDI, the applications would clearly have been
subject to the open-record law. We do not
believe the open-record law can be
circumvented by the delegation of a public duty
to a third party, and these documents are not
any less a public record simply because they
were in possession of PDI. ... [The] purpose of
the open-record law would [*13] be thwarted
if we were to hold that documents so closely
connected with public business but in the
possession of an agent or independent
contractor of the public entity are not public
records. We conclude that the documents in
this case are public records ....

Forum Pub. Co. v. City of Fargo, 391 N.W.2d 169,
172 (N.D. 1986) (citations omitted).
P24 The Senate argues that the superior court's
order would open the files of all government
vendors to public inspection. In this case, the
Senate outsourced its important legislative function
to Cyber Ninjas and its sub-vendors. However, as
noted supra paragraph 18, only documents with a
substantial nexus to government activities qualify
as public records. There is no reason why vendors
providing ordinary services rather than performing
core governmental functions would be subject to
the PRL.
P25 We find no error with the superior court's
determination that the requested documents are
public records that must be disclosed.

CONCLUSION

P26 For the foregoing reasons we accept
jurisdiction, deny relief, and lift the stay of
proceedings previously issued regarding the
superior court's August 2 order.