Cyber Ninjas v. Hon. Hannah ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
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 KATHY
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.
No. 1 CA-SA 21-0173
FILED 11-9-2021
Petition for Special Action from the Superior Court in Maricopa County
No. LC2021-000180-001
The Honorable John Hannah, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
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 Kory A. Langhofer, Thomas J. Basile
Counsel for Real Parties in Interest Arizona State Senate, Karen Fann, Warren
Petersen, and Susan Aceves
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Acting Presiding Judge David B. Gass and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 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 “PNI”). For the following reasons, we accept
jurisdiction but deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 The Arizona Senate initiated an audit of voting equipment
used and ballots cast in Maricopa County in the 2020 general election, and
it retained Cyber Ninjas, a private corporation, to serve as its primary
vendor for that audit. Cyber Ninjas then hired multiple private companies
to assist it in the audit.
¶3 In June 2021, the Arizona Republic, published by Phoenix
Newspapers, Inc., served a request on Cyber Ninjas to inspect documents
relating to the audit. The newspaper asserted the documents were public
records subject to inspection under Arizona’s Public Records Law (“PRL”),
Chapter 1 of Title 39, Arizona Revised Statutes (“A.R.S”). Cyber Ninjas did
not produce any records to the Arizona Republic in response to its request.
¶4 PNI then filed a statutory special action under the PRL against
Cyber Ninjas, the Senate, Senate President Karen Fann and other Senate
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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 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 any public records directly to PNI. At Cyber Ninjas’
request, we temporarily stayed the superior court’s order that it produce all
documents directly to PNI.1
SPECIAL ACTION JURISDICTION
¶5 Special action review is generally appropriate if a party has
no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P.
Spec. Act. 1(a); see generally Sw. Gas Corp. v. Irwin, 229 Ariz. 198, 201, ¶¶ 5-7
(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 Court (Landeros), 203 Ariz. 46, 47, ¶ 4
(App. 2002).
¶6 Here, the issues raised in the petition are pure questions of
law and are of statewide importance. Accordingly, we accept special action
jurisdiction.
DISCUSSION
¶7 This case presents a question of statutory interpretation,
which we review de novo. McHale v. McHale, 210 Ariz. 194, 196, ¶ 7 (App.
2005).
¶8 The PRL 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
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 our ruling in Fann v. Kemp, 1 CA-SA 21-0141, 2021 WL
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.
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this state.” A.R.S. § 39-121.01(B). Arizona law imposes additional duties
on those responsible for public records. 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.
§ 39-121.01(C).
¶9 We recently addressed a request for audit documents made
to the Arizona Senate under the PRL. Fann, 1 CA-SA 21-0141, at *4-5,
¶¶ 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 ruled the Senate must obtain from Cyber Ninjas any
records that were requested under the PRL. Id. at ¶¶ 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. Id. at *4, ¶ 23.
¶10 Cyber Ninjas also argues it cannot be subject to suit under the
PRL because it is not a public entity, an issue that, as PNI acknowledges,
was not before this court in Fann. In support of the superior court’s ruling,
PNI first argues Cyber Ninjas is subject to suit under the PRL because it is
an “officer” of the Senate or a “public body.” We disagree.
¶11 Section 39-121.01(A) defines “Officer” and “Public body” as
follows:
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
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or any political subdivision of this state, or expending
monies provided by this state or any political
subdivision of this state.
A.R.S. § 39-121.01(A)(1), (2).
¶12 Cyber Ninjas has performed a public function in undertaking
the audit and was paid with public funds to do so. Nevertheless, although
the Senate delegated 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 ¶ 11.
¶13 PNI also argues it may obtain relief against Cyber Ninjas
under the PRL because Cyber Ninjas is the sole “custodian” of documents
that are public records subject to disclosure under the PRL. We agree.
¶14 As PNI contends, the PRL requires a “custodian” of public
records to “promptly furnish” requested records. A.R.S. § 39-121.01(D)(1).
Although the PRL does not define “custodian,” that word commonly means
“[a] person or institution that has charge or custody (of a child, property,
papers, or other valuables),” or “[s]omeone who carries, maintains,
processes, receives, or stores a digital asset.” Black’s Law Dictionary 483
(11th ed. 2019). “Custody” means “[t]he care and control of a thing or
person for inspection, preservation, or security.” Id.; W. Valley View Inc. v.
Maricopa Cnty. Sheriff’s Office, 216 Ariz. 225, 229, ¶ 16 (App. 2007).
¶15 To the extent Cyber Ninjas is in sole possession of audit-
related public records because of its contract with the Senate, Cyber Ninjas
has become the custodian of those records under the PRL. And as to those
records, Cyber Ninjas has assumed the obligations the PRL assigns to a
“custodian” of public records. Under the PRL, a person seeking public
records must make its request to the “custodian” of the records. A.R.S.
§ 39-121.01(D)(1). “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.R.S. § 39-121.01(E).
¶16 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
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specify that a suit for damages may be brought against a custodian of public
records, see A.R.S. § 39-121.02(C), in these circumstances, nothing prevents
a party from joining a custodian of records as a party to a statutory special
action under the PRL. See Ariz. R.P. Spec. Act. 2(a)(1), (b) (court may order
joinder of persons2 other than the “body, officer or person against whom
relief is sought.”). See also Arpaio v. Citizen Publ’g Co., 221 Ariz. 130, 133,
¶ 10 n.4 (App. 2008); Gerow v. Covill, 192 Ariz. 9, 14, ¶ 21 (App. 1998) (citing
Ariz. R. Civ. P. 19(a)(1)(A) (where feasible, joinder may be required of a
person “if, in that person’s absence, the court cannot accord complete relief
among existing parties.”)).
¶17 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.
¶18 To hold otherwise would circumvent the PRL’s purpose,
which “exists to allow citizens to be informed about what their government
is up to.” Scottsdale Unified Sch. Dist. 48 of Maricopa Cnty. v. KPNX Broad.
Co., 191 Ariz. 297, 302-03, ¶ 21 (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 party, Cyber
Ninjas.” 1 CA-SA 21-0141, at *4, ¶ 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 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 North 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 the open-
2 Section 1-215(29) defines “person” as “a corporation, company,
partnership, firm, association or society, as well as a natural person.”
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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.
¶19 Cyber Ninjas argues that the logic of the superior court’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 Ninjas’ contention, our ruling does not mean that construction
companies and office-supply 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, ¶ 8 (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 court’s order or in this decision imposes obligations under the PRL
on contractors that provide ordinary goods or services to the government.
¶20 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 turn 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 “promptly furnish” those records directly to PNI.
See A.R.S. § 39-121.01(D)(1). As the superior court ordered, the Senate and
Cyber Ninjas may confer about 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.
¶21 PNI requests attorneys’ fees and costs incurred in responding
to the petition under A.R.S. §§ 39-121.02(B), 12-341, -342, and Ariz. R.P.
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).
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CONCLUSION
¶22 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.
AMY M. WOOD • Clerk of the Court
FILED: AA
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