IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KAREN FANN, in her official capacity as President of the Arizona Senate; 

WARREN PETERSEN, in his official capacity as Chairman of the Senate 

Judiciary Committee; the ARIZONA SENATE, a house of the Arizona 

Legislature, Petitioners,

v.

THE HONORABLE MICHAEL KEMP, Judge of the SUPERIOR COURT 

OF THE STATE OF ARIZONA, in and for the County of MARICOPA, 

Respondent Judge, 

AMERICAN OVERSIGHT, Real Party in Interest.

No. 1 CA-SA 21-0216 

Petition for Special Action from the Superior Court in Maricopa County

No. CV 2021-008265

The Honorable Michael Kemp, Judge

JURISDICTION ACCEPTED; 

RELIEF DENIED IN PART, GRANTED IN PART

COUNSEL

Statecraft PLLC, Phoenix

By Kory A. Langhofer, Thomas J. Basile

Counsel for Petitioners

Coppersmith Brockelman PLC, Phoenix

By L. Keith Beauchamp, Roopali H. Desai, D. Andrew Gaona

Counsel for Real Party in Interest

Ballard Spahr LLP, Phoenix

By David J. Bodney, Craig C. Hoffman

Counsel for Amicus Curiae, Phoenix Newspapers, Inc., and Kathy Tulumello 

FILED 1-21-2022
FANN, et al. v. HON. KEMP/AMERICAN

Opinion of the Court

2

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which 

Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 In this public records case, Senate President Karen Fann, 

Senate Judiciary Committee Chairman Warren Petersen, and the Arizona 

Senate (collectively “the Senate”) seek special action relief from the superior 

court’s order rejecting the Senate’s contention that it may withhold about

1,100 records relating to its election audit based on legislative privilege. In 

this decision, we address whether (1) the privilege broadly shields all the 

records listed in the Senate’s privilege log from disclosure under Arizona’s 

public records law (“PRL”), A.R.S. § 39-121; and (2) the Senate globally 

waived the privilege for all records concerning the audit by making 

periodic and comprehensive public statements. 

¶2 We conclude the Senate has not met its burden of showing 

that all communications listed in its privilege log may be withheld based 

on legislative privilege. The superior court erred, however, in finding a 

global waiver of the privilege. 

BACKGROUND

¶3 In March 2021, the Senate initiated an audit of approximately

2.1 million ballots cast during the November 2020 general election

conducted in Maricopa County. The Senate contracted with a private 

corporation, Cyber Ninjas, to serve as the primary vendor for the project. 

As provided in the “Statement of Work,” the Senate and Cyber Ninjas

described the audit’s scope as an “attempt to validate every area of the 

voting process to ensure the integrity of the vote,” and would include 

auditing of “the registration and votes cast, the vote counts and tallies, the 

electronic voting system, as well as auditing the reported results.” They 

also agreed that at the audit’s conclusion, the “primary deliverable” would 

be a report detailing all findings discovered during the audit, including 

recommendations “on how to prevent any detected weaknesses from being 

a problem in future elections (if applicable).” Six months later, Cyber 

Ninjas delivered its audit report to the Senate, which then released the 
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3

report to the public and conducted a public hearing outlining the report’s 

findings and conclusions. 

¶4 Meanwhile, American Oversight, a nonprofit organization

that advocates for government transparency, submitted requests to the 

Senate and Cyber Ninjas for production of public records relating to the 

audit. When the Senate refused to produce most of the requested records, 

American Oversight filed a complaint under the PRL to compel disclosure 

of the documents, including those in the possession or custody of Cyber 

Ninjas and its contractors. 

¶5 The Senate moved to dismiss the complaint, asserting in part 

that legislative immunity barred the lawsuit. The superior court rejected 

the Senate’s assertion and directed it to immediately disclose “all 

documents and communications relating to the planning and execution of 

the audit, all policies and procedures being used by the agents of the Senate 

Defendants, and all records disclosing specifically who is paying for and 

financing this legislative activity, as well as precisely how much is being 

paid,” and “all other documents having ‘a substantial nexus to the audit 

activities.’” This court accepted jurisdiction of the Senate’s ensuing special 

action petition but denied relief. Fann v. Kemp (“Fann I”), 1 CA-SA 21-0141, 

2021 WL 3674157, at *1, ¶ 1 (Ariz. App. Aug. 19, 2021) (mem. decision). 

¶6 In Fann I, the Senate argued it was constitutionally immune 

from suit because the decision to withhold or disclose audit records is a 

“legitimate legislative function.” Id. at *2, ¶ 12. We rejected that argument, 

reasoning in part that the legislature could have exempted itself from the 

PRL, but it chose not to. Id. at *3, ¶ 15. We noted the PRL is subject to many 

exceptions, but it does not afford a blanket exemption for the legislature. 

Id. at ¶ 16. We therefore concluded that “[a]llowing the legislature to 

disregard the clear mandate of the PRL would undermine the integrity of 

the legislative process and discourage transparency, which contradicts the 

purpose of both the immunity doctrine and the PRL.” Id. at ¶ 17. 

¶7 Addressing the Senate’s separate contention that it did not 

have custody of the documents maintained by Cyber Ninjas, we reasoned 

that the Senate defendants have a duty under the PRL to maintain and 

disclose public records relating to their official duties and that such

documents remain public even if possessed by a third party. Id. at *4, 

¶¶ 21–23. Disagreeing with the Senate’s argument that “the superior 

court’s order would open the files of all government vendors to public 

inspection,” we pointed out that the Senate had “outsourced its important 

legislative function to Cyber Ninjas,” adding that “only documents with a 
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substantial nexus to government activities qualify as public records.” Id. at 

*5, ¶ 24.

¶8 The Senate hired a third party to review and upload a 

“massive repository of records.” The review included searching the 

personal cell phones of Senator Fann, as well as audit liaisons Ken Bennett 

and Randy Pullen. The Senate then disclosed about 22,000 records but 

withheld 422 records on the grounds of legislative privilege and redacted 

another 272 for the same reason. The Senate also withheld another 402

records based in part on legislative privilege. According to the Senate’s 

privilege log, the emails contain “internal legislative discussions regarding

[the] audit,” while the text messages refer to “communications re: 

legislative investigation and audit process.” 

¶9 American Oversight moved to compel the Senate to produce

the withheld records, asserting the Senate was now relying on legislative 

privilege to hide from public view “virtually every communication”

relating to the audit between (1) Senator Fann, Senator Petersen, Bennett, 

and/or Pullen; and (2) any of those four individuals and anyone associated 

with Cyber Ninjas or the various contractors conducting the audit. 

American Oversight argued the Senate failed to meet its burden to show 

that the legislative privilege applies to the records in its privilege log, 

contending the Senate (1) provided insufficient information to conclude the 

audit discussions were “an integral part of the deliberative and 

communicative processes relating to proposed legislation,” and (2) failed to 

show the communications at issue involve matters that were “necessary to 

prevent indirect impairment of such deliberations.” American Oversight

also argued (1) the Senate waived its right to assert the privilege, pointing 

to repeated public statements about the audit and the public hearing it 

conducted on the audit report; and (2) alternatively, the court should 

require the Senate to remedy its “inadequate” privilege log and provide 

representative samples of withheld documents for in camera review. 

¶10 In response, the Senate argued that the audit itself “is a 

legislative matter within the scope of the privilege.” According to the 

Senate, “courts have long recognized that investigations and other factfinding inquiries are integral to, and inseparable from, the act of 

legislating,” and thus the privilege includes “the communication or 

development of purely factual information” relating to those 

investigations. Addressing the audit’s “intrinsic character as a legislative 

function,” the Senate pointed to its power to issue subpoenas to Maricopa 

County to obtain election materials as well as this court’s finding in Fann I

that the audit is an “official legislative activity.” The Senate therefore 
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asserted that (1) legislative privilege is a constitutional limitation on the 

PRL, (2) its privilege log was sufficient, and (3) no waiver of the privilege 

had occurred. 

¶11 After oral argument, the superior court explained it would 

hold in abeyance whether an in camera inspection was necessary and 

declined to address the sufficiency of the privilege log. Addressing the 

merits, the court found that the Senate cannot assert the legislative privilege

because: (1) communications about the audit are not an integral part of the 

deliberative process regarding proposed legislation; (2) disclosure of 

documents with a substantial nexus to the audit would not impair the 

deliberative legislative process; and (3) factual communications relating to 

procedures, protocols, practices, findings, or conclusions relating to the 

audit are not privileged. Describing the privilege as “qualified,” the court 

further reasoned that American Oversight’s interest on behalf of the public 

substantially outweighs the Senate’s interest in non-disclosure. It also 

determined that even if the legislative privilege applies, the Senate waived 

it by releasing many public statements, issuing its comprehensive report, 

and holding the public hearing. 

¶12 The Senate filed a petition for special action in this court,

challenging the superior court’s order granting American Oversight’s 

motion to compel. Special action review is appropriate when there is no 

“equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec. 

Act. 1(a). Acceptance of special action jurisdiction is also appropriate to 

review purely legal issues of statewide importance and first impression. 

Gilbert Prosecutor’s Office v. Foster, 245 Ariz. 15, 17, ¶ 5 (App. 2018). Because 

those factors are present here, we accept jurisdiction.

DISCUSSION

A. Public Records Law

¶13 “Public records and other matters in the custody of any officer 

shall be open to inspection by any person at all times during office hours.” 

A.R.S. § 39-121. Public officers are required to “maintain all records . . . 

reasonably necessary or appropriate to maintain an accurate knowledge of 

their official activities and of any of their activities that are supported by 

monies from this state or any political subdivision of this state.” A.R.S. 

§ 39-121.01(B). It is undisputed that the documents listed in the Senate’s 

privilege log are public records. 

¶14 “Consistent with the goal of openness in government,”

Arizona law broadly defines public records, creating a presumption that 
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requires disclosure of public documents. Lake v. City of Phoenix, 222 Ariz. 

547, 549, ¶ 8 (2009); see also Carlson v. Pima County, 141 Ariz. 487, 491 (1984);

Phoenix Newspapers, Inc. v. Keegan, 201 Ariz. 344, 351, ¶ 33 (App. 2001) (“The 

core purpose of the [PRL] is to allow the public access to official records and 

other government information so that the public may monitor the 

performance of government officials and their employees.” (citation and 

quotation omitted)). 

¶15 Although the public’s right to access public records is broad, 

it is not unlimited; the PRL is subject to statutory exemptions and the 

common law also imposes certain limitations on disclosure. See Carlson, 141 

Ariz. at 490. For example, an officer subject to the PRL may “deny or restrict 

access where recognition of the interests of privacy, confidentiality, or the 

best interest of the state in carrying out its legitimate activities outweigh the 

general policy of open access.” Id. at 491. A public official bears the burden 

of overcoming the presumption favoring disclosure. Cox Ariz. Publ’ns, Inc. 

v. Collins, 175 Ariz. 11, 14 (1993). Pertaining to this special action, the Senate 

relies only on the legislative privilege in defense of its decision to withhold 

from public disclosure the records listed in its privilege log. 

¶16 The Senate argues that when legislative privilege applies, it is 

“absolute, unqualified, and superordinate” to the PRL. As we noted in Fann 

I, 2021 WL 3674157, at *4, ¶ 19, the superior court described the audit as an 

“important public function” and “an official legislative activity.” Such 

descriptions, however, do not mean that legislative privilege, even where 

applicable, necessarily defeats every public records request. See id. at *3, 

¶ 16 (explaining that legislative immunity does not grant the legislature “a 

blanket exemption from compliance with the PRL” or an exemption “from 

lawsuits contesting a denial of access to public records”); see also Carlson, 

141 Ariz. at 490 (explaining that common-law limitations on public access 

“do not preclude inspection entirely even where the competing interests of 

the common law limitations override the public’s right to inspect certain 

documents”). But given the current posture of this case, we need not

address whether the PRL may trump the legislative privilege in a particular 

situation. Instead, we consider only whether the privilege applies to every 

confidential communication relating to the audit between legislators, or 

between legislators and their agents. 

B. Legislative Privilege

¶17 As a general principle, the doctrine of legislative privilege 

“stems from the doctrine of legislative immunity,” which originates from

federal common law, the Speech or Debate Clause of the United States 
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Constitution, and the Arizona Constitution. Ariz. Indep. Redistricting 

Comm’n v. Fields, 206 Ariz. 130, 136, ¶¶ 15–16 (App. 2003); U.S. Const. art. I, 

§ 6, cl. 1 (“[F]or any Speech or Debate in either House, [legislators] shall not 

be questioned in any other Place.”); Ariz. Const. Art. IV, pt. 2, § 7 (“No 

member of the legislature shall be liable in any civil or criminal prosecution 

for words spoken in debate.”). Because Arizona’s doctrines of legislative 

immunity and legislative privilege originate from the federal common law, 

the federal Speech or Debate Clause is persuasive in interpreting the scope 

of Arizona’s counterpart. Fields, 206 Ariz. at 137, ¶ 16 n.4. The Speech or 

Debate Clause is rooted in separation of powers principles and “protects 

Members against prosecutions that directly impinge upon or threaten the 

legislative process.” Gravel v. United States, 408 U.S. 606, 616 (1972). 

¶18 Legislative immunity “prevents legislators, their aides, and 

their contractors from being criminally prosecuted or held civilly liable for 

their legislative activities.” Mesnard v. Campagnolo, 251 Ariz. 244, 248, ¶ 12 

(2021). “The legislative immunity doctrine also functions as a testimonial 

and evidentiary privilege.” Fields, 206 Ariz. at 137, ¶ 17. When it applies, 

the legislative privilege protects legislators from being required to testify or 

produce evidence about their legislative activities or the motivations for 

those activities. Id. And “to the extent the legislative privilege protects 

against inquiry about a legislative act or communications about that act, the 

privilege also shields from disclosure documentation reflecting those acts 

or communications.” Id. at 141, ¶ 32.

¶19 When a legislator asserts the legislative privilege, the 

legislator has “the burden of establishing that a matter is privileged.” 

Steiger v. Superior Ct., 112 Ariz. 1, 3 (1975). We narrowly construe 

constitutional, common law, and statutory privileges because they are “in 

derogation of the search for truth.” Fields, 206 Ariz. at 136, ¶ 14 (quoting 

United States v. Nixon, 418 U.S. 683, 709–10 (1974)). We review de novo the 

application and scope of the legislative privilege. See id. We also review de 

novo whether a party has waived a privilege, which is a mixed question of 

fact and law. Id.

¶20 The Senate argues the superior court erred in characterizing 

Arizona’s legislative privilege as “qualified.” To the extent the court 

reasoned that the state legislative privilege is qualified and subject to the 

same balancing tests as the federal common law privilege, this was error. 

See Favors v. Cuomo, 285 F.R.D. 187, 208–09 (E.D.N.Y. 2012) (explaining that 

the federal common law privilege for state actors appearing in federal court

is a qualified privilege, where the “court must balance the interests of the 

party seeking the evidence against the interests of the individual claiming 
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Opinion of the Court

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the privilege” to decide whether it applies). The Senate also contends that 

because the legislative privilege is not qualified, it must apply absolutely to 

the records at issue. This argument, however, conflates a court’s decision 

about when the privilege applies with how it is applied. When a matter 

plainly falls within the scope of the privilege after consideration of the 

particular circumstances in which the protection is claimed, it is absolute. 

See Edwards v. Vesilind, 292 Va. 510, 525 (2016) (“Once a court determines 

that legislative privilege attaches, it is absolute in nature.”); see also Miller v. 

Transamerican Press, Inc., 709 F.2d 524, 528 (9th Cir. 1983).

¶21 Legislative privilege, however, does not apply to all 

legislative-related conduct in all circumstances, and a court must first 

determine whether the records or conduct at issue fall within the scope of 

the privilege. That the court engages in this analysis does not make the 

privilege “qualified,” as the Senate argues, but instead reflects the public 

policy of narrowly construing privileges. See Blazek v. Superior Ct., 177 Ariz. 

535, 537 (App. 1994). We reject the Senate’s apparent contention that the 

privilege blocks disclosure under the PRL of any record that bears any 

connection to a legislative function. See Fields, 206 Ariz. at 137, ¶ 18 

(explaining that legislative privilege “does not extend to cloak ‘all things in 

any way related to the legislative process’” (citation omitted)). Instead, in 

this case, we view the privilege in light of its well-recognized purposes,

together with the PRL’s strong presumption in favor of disclosure. The 

Senate has presented no evidence that the requested records might be used 

in any criminal or civil proceeding against any legislator, id. at 137, ¶ 17

(explaining that legislative privilege protects legislators from being 

required to testify or produce evidence about legislative activities), or that 

disclosing the records might in any way impede the “fundamental 

purpose” of the privilege, which is to uphold separation of powers 

principles, see Gravel, 408 U.S. at 618. Under such circumstances, a legislator 

seeking to invoke the legislative privilege to prevent disclosure of public 

records under the PRL carries a heavy burden. 

1. Scope of the Privilege

¶22 The federal Speech or Debate Clause is interpreted “broadly” 

and covers “anything ‘generally done in a session of the House by one of 

its members in relation to the business before it.’” United States v. Brewster, 

408 U.S. 501, 509 (1972) (citation omitted). As such, the legislative privilege 

covers legislative acts by a lawmaker and a lawmaker’s motivations for 

those acts. Steiger, 112 Ariz. at 3. But the legislative privilege “should not 

extend beyond what is necessary to accomplish the purposes of the [Speech 

and Debate] clause.” Miller, 709 F.2d at 528; see Gravel, 408 U.S. at 618 
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(“Rather than giving the [Speech and Debate] clause a cramped 

construction, the Court has sought to implement its fundamental purpose 

of freeing the legislator from executive and judicial oversight that 

realistically threatens to control his conduct as a legislator.”). For that 

reason, the privilege only protects activities within the “sphere of legitimate 

legislative activity.” See Gravel, 408 U.S. at 624–25 (citation and quotation

omitted); see also Fields, 206 Ariz. at 136, ¶ 15. Thus, whether a legislator 

may invoke the legislative privilege depends on whether the subject of the 

inquiry is a legitimate legislative act. See Fields, 206 Ariz. at 137, ¶ 17. 

¶23 Not everything a legislator does qualifies as a legislative act. 

See Gravel, 408 U.S. at 625 (“Legislative acts are not all-encompassing.”). 

The Supreme Court explained in Gravel that “[t]he heart of the Clause is 

speech or debate in either House.” Id. The Court continued: 

Insofar as the Clause is construed to reach other matters, they 

must be an integral part of the deliberative and 

communicative processes by which Members participate in 

committee and House proceedings with respect to the 

consideration and passage or rejection of proposed legislation 

or with respect to other matters which the Constitution places 

within the jurisdiction of either House. As the Court of 

Appeals put it, the courts have extended the privilege to 

matters beyond pure speech or debate in either House, but 

“only when necessary to prevent indirect impairment of such 

deliberations.” 

Id. (citation omitted).

¶24 Arizona follows the analysis in Gravel to determine whether 

acts other than pure speech and debate are protected under the legislative 

privilege. See Fields, 206 Ariz. at 137, ¶ 18 (citing Gravel for the conclusion 

that “the privilege extends to matters beyond pure speech or debate in the 

legislature only when such matters are ‘an integral part of the deliberative 

and communicative processes’ relating to proposed legislation or other 

matters placed within the jurisdiction of the legislature, and ‘when 

necessary to prevent indirect impairment of such deliberations.’” (citations

omitted)). The legislator asserting the privilege has the burden to show that 

the Gravel/Fields framework is satisfied. See Steiger, 112 Ariz. at 3. 

2. Gravel/Fields Framework 

¶25 The Senate does not contend the audit is protected as “pure 

speech and debate” occurring during in a legislative proceeding. See Gravel, 
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408 U.S. at 625; Fields, 206 Ariz. at 137, ¶ 18. Rather, it argues the audit is 

protected as “an integral part of the deliberative and communicative 

processes” concerning “passage or rejection of proposed legislation or with 

respect to other matters” within its jurisdiction. Gravel, 408 U.S. at 625. The 

Senate disputes the superior court’s finding to the contrary, arguing that 

the legislative privilege automatically attaches to every legislative 

investigation. In support of this argument, the Senate notes that its 

legislative subpoenas related to the audit were upheld, in part, because the 

Senate issued them with “an eye to introducing possible reform proposals” 

and that the audit report suggested potential reforms for identified election 

issues. We decline to interpret the legislative privilege so broadly. See 

Steiger, 112 Ariz. at 4 (“None of the cases construing the privilege have 

extended it to the length sought by petitioner.”).

¶26 It is far from certain that the audit was, or even could be, 

integral to the deliberative and communicative processes of the legislature. 

Nothing in the record shows that the prime purpose of the audit was to 

identify changes required to Arizona’s voting laws, and it is undisputed 

that at no time during the audit was any election legislation pending before 

the legislature. Rather, as outlined in the Statement of Work, the audit’s 

primary objective was to verify that election procedures were sufficiently 

observed. Indeed, the audit has more hallmarks of an administrative action 

than of any deliberative or communicative process integral to its legislative 

function. See Fields, 206 Ariz. at 137, 138, ¶¶ 18, 21 (noting that while the 

legislative privilege does not apply to administrative tasks, it does cover 

legislative acts that “bear[] the ‘hallmarks of traditional legislation’”

(citation omitted)). Therefore, the superior court’s finding was not in error. 

¶27 For the same reason, we reject the Senate’s contention that the 

superior court committed reversible error by characterizing the public 

hearing on the final audit report as a “political act.” On September 24, 2021,

the Senate held a public hearing in the Senate chambers “to outline their 

findings and conclusions.” As the court explained, no sworn or questioned 

witnesses were at the hearing, nor did any debate or deliberating occur. In 

fact, the only legislators formally present were Senators Fann and Petersen. 

The court found that the hearing was “much more akin to a press 

conference.” Even if the court’s label was incorrect, it makes no difference 

because the hearing lacked the hallmarks of traditional legislation. See 

Fields, 206 Ariz. at 138, ¶ 21 (explaining that an act is legislative when it 

reflects a “discretionary, policymaking decision that may have prospective 

implications” (citation omitted)). 
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¶28 The Senate argues the audit was a “fact-finding 

investigation[] in furtherance of potential future lawmaking projects.” As 

such, the Senate contends the legislative privilege applies to every 

confidential communication between a legislator and their staff or agents 

relating to the “planning, execution and results of the Audit.” The 

legislature has the power to conduct investigations aimed at determining 

the need for new legislation. See Eastland v. U.S. Servicemen’s Fund, 421 U.S. 

491, 504 (1975) (“[T]he power to investigate is inherent in the power to make 

laws because ‘[a] legislative body cannot legislate wisely or effectively in 

the absence of information respecting the conditions which the legislation 

is intended to affect or change.’” (citation omitted)). But the mere fact that 

the legislature conducted an investigation does not mean it is necessarily 

protected by the legislative privilege. 

¶29 “The ‘legislative process’ does not . . . mean that everything 

related to the office of Congressman is shielded by the Clause. Only those 

acts generally done in the course of the process of enacting legislation are 

protected.” Steiger, 112 Ariz. at 3; see also Miller, 709 F.2d at 530 (“Not all 

conduct preceding a legislative act falls within the privilege.”). In Steiger, a 

member of Congress invoked the legislative privilege under the federal 

Speech or Debate Clause to prevent his former aide from being deposed 

about a meeting that took place with the member, his aide, and other 

individuals. 112 Ariz. at 2. The member argued the deposition related to a 

legislative investigation he contemplated undertaking. Id. at 3. Our 

supreme court rejected this argument because there was “no showing that 

the investigation was related to any pending congressional inquiry or 

legislation.” Id. While the court recognized that “the impetus” for 

subsequent proposed legislation may have been related to the investigation, 

it declined to extend the legislative privilege to “all things in any way 

related to the legislative process.” Id. at 4 (“Under such an expansive view 

there are few activities in which a legislator engages that could not be 

somehow related to the legislative process.”). 

¶30 In short, the Senate has made no showing that the audit was 

in any way related to any proposed legislation. The scope of the audit, as 

described in the Statement of Work, was to “validate every area of the 

voting process to ensure the integrity of the vote.” The audit’s stated 

purpose reflects no promise to propose legislation in the future. And while 

the audit might have revealed areas in Arizona’s election process that could

be the subject of new legislation, the connection between the audit and any 

future legislation is too tenuous to conclude that the audit could reasonably 

qualify as a legitimate legislative act. See United States v. Renzi, 651 F.3d 

1012, 1022 (9th Cir. 2011) (noting there is a “marked distinction” between 
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performing a legislative act and promising to perform one in the future). 

Thus, we reject the Senate’s broad assertion that the legislative privilege 

covers every legislative communication listed in its privilege log.

¶31 The Senate also contends the investigation is a matter placed 

within its jurisdiction, another element of the Gravel/Fields framework. But 

the Senate does not explain how that fact alone can trigger application of 

the legislative privilege. Not everything a legislator does, even if related to 

his or her official duties, can be classified as a legislative act under the 

framework. See Brewster, 408 U.S. at 515 (“In no case has this Court ever 

treated the Clause as protecting all conduct relating to the legislative 

process.”); see also Steiger, 112 Ariz. at 4 (“Neither the history, literal 

language, nor judicial construction extend the privilege to include all things 

in any way related to the legislative process.”). Only activities “done in the 

course of the process of enacting legislation” receive protection. Steiger, 112 

Ariz. at 3. 

¶32 The Senate further argues the superior court erred in ruling 

the privilege would apply to the audit only if the Senate could show the 

privilege was “necessary to prevent indirect impairment of” the Senate’s 

protected deliberations. But this court’s adoption and approval of the 

Gravel framework in Fields refutes that argument. See Fields, 206 Ariz. at 

137, ¶ 18. Because the Senate has made no attempt to show how 

confidential treatment of its communications relating to the audit was 

necessary to prevent indirect impairment of its legislative deliberations, it 

has necessarily failed to meet its burden of establishing that each of the 

records listed in the privilege log are shielded from public disclosure. 

3. Waiver

¶33 The superior court held that the Senate globally waived any 

claim to the legislative privilege by speaking publicly about the audit, 

publishing a report, and holding a public hearing addressing the report’s 

findings and conclusions. The court reasoned that the Senate “cannot 

publicly release numerous public statements about the audit, release a 

comprehensive report about the audit, and then refuse to disclose 

documents and communications that are central and integral to the findings 

and conclusions of that report.” In reaching this conclusion, the court cited 

Fields, where we held that the designation of a consulting expert as a 

testifying-expert witness waives the legislative privilege “(1) attaching to 

communications with those experts, or any materials reviewed by them, 

and (2) relating to the subject of the expert’s testimony.” 206 Ariz. at 144–

45, ¶ 50. 
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¶34 We agree with the superior court that the legislative privilege, 

unlike legislative immunity, can be implicitly waived when a legislator acts

inconsistently with asserting the privilege. Am. Cont’l Life Ins. Co. v. Ranier 

Constr. Co., 125 Ariz. 53, 55 (1980); see also Favors, 285 F.R.D. at 211–12; Puente 

Ariz. v. Arpaio, 314 F.R.D. 664, 671 (D. Ariz. 2016). This may occur during 

litigation when a party testifies to otherwise privileged information, or by 

communicating privileged information to outsiders. Favors, 285 F.R.D. at 

211–12. But it cannot be the case that when a legislator makes a public 

statement about a particular matter, he or she automatically waives all

legislative privilege claims over every communication relating to that 

matter. Adopting that principle would discourage legislators from 

providing public disclosures in any significant detail, undermining public 

transparency and thus defeating the purposes of the PRL. Moreover, the 

legislative privilege is personal; it must be waived or asserted by the 

specific legislator involved in the communication at issue. Gravel, 408 U.S. 

at 621–22, 622 n.13. Individual legislators have the right to assert the 

legislative privilege over their own communications relating to legitimate 

legislative acts, and the court’s broad application of waiver could interfere 

with that right.

¶35 The analogy to Fields is not persuasive, as our holding in that 

case was based in part on the particular needs of litigation; specifically, the 

needs of the opposing party when cross-examining a designated expert 

witness. 206 Ariz. at 143–45, ¶¶ 43–50. Further, in litigation, a legislator 

may face a choice between invoking the legislative privilege and waiving it 

by calling a witness who will be questioned on otherwise privileged 

matters. The record before us does not show that the Senate has globally 

waived the privilege for every record related to the audit. Thus, the Senate 

is not necessarily foreclosed from establishing the privilege applies as to

individual records that could conceivably fall within the Gravel/Fields

framework. We express no opinion, however, whether the Senate can meet 

its burden of showing that any of the records listed in the privilege log are 

protected by the legislative privilege.

C. Attorneys’ Fees and Costs

¶36 American Oversight requests attorneys’ fees and costs 

incurred in responding to the Senate’s petition under A.R.S. § 39-121.02(B), 

which authorizes attorneys’ fees and “other legal costs” incurred in a public 

records action if the party “seeking public records has substantially 

prevailed.” We deny the request without prejudice, deferring it to the 

superior court’s discretion pending the ultimate resolution of this litigation. 
FANN, et al. v. HON. KEMP/AMERICAN

Opinion of the Court

14

See Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 204, ¶ 37 

(App. 2007). 

CONCLUSION

¶37 We accept jurisdiction but deny relief on the Senate’s claim 

that the records listed in its privilege logs are broadly insulated from public 

disclosure on the grounds of legislative privilege. We therefore affirm that 

portion of the superior court’s ruling. We grant relief in part by vacating 

the court’s decision finding global waiver of the privilege. 

¶38 We direct the Senate to immediately disclose to American 

Oversight all records listed in its privilege log that do not fall within the 

Gravel/Fields framework analyzed above. To the extent the Senate claims 

that any such records are nonetheless shielded from disclosure by the

legislative privilege, the Senate shall submit them forthwith to the superior 

court for an in camera inspection. The court must then determine whether 

the records fall within the scope of the privilege as discussed herein, or 

whether they must be disclosed under the PRL.