Check Your Privilege: The Arizona Supreme Court Clarifies the Scope and Application of the Legislative Privilege in Fann v. Kemp

By Brett W. Johnson and Ryan P. Hogan

The ability to petition one’s leaders is long recognized regardless of the form of government.  Ever since the Watergate Scandal, the United States has taken the lead on transparency in governmental acts and the interaction of elected leaders with the community. Given Arizona’s strong public policy in favor of such transparency in government, embodied in Arizona’s public records and open meetings law,¹ it is often perceived that any governmental document is open for review. But such requests can face obstacles, including assertions of what is known as “legislative privilege.” 

In a recent appellate decision arising from the Arizona Senate’s government contract to audit ballots cast in Maricopa County during the November 2020 election (the “Audit”), the Arizona Supreme Court elaborated and clarified as to the obstacles facing both those who seek to obtain those communications and legislators seeking to retain them in confidence. 

Understanding the Legislative Privilege

At a high level, the legislative privilege is a doctrine that prevents legislators from being compelled to testify about the legislature’s “deliberative and communicative processes relating to proposed legislation or other matters placed within the jurisdiction of the legislature.”² Thus, legislators “engaged in legitimate legislative activities” cannot be made to testify or produce documents detailing those activities or the motives underlying them.³ This is meant to respect the division of government and allow legislators to receive unfettered information to draft and pass laws.

But this privilege does not apply to every act taken by a legislator. Legislative privilege protects only documents or communications “concerning purely legislative acts and does not cover communications solely about political or administrative acts.”⁴ Examples of protected activity “include preparing reports, offering resolutions, voting, and other activities generally undertaken by a legislator during a legislative session related to business before the legislature.” ⁵ When legislators, legislative aids, and legislative contractors perform such legislative activities, their communications may be privileged.⁶

The legislative privilege became relevant to the Audit when a nonprofit government watchdog organization submitted a request to the Senate and its’ contractor to produce records related to the Audit.⁷ Although the Senate disclosed thousands of records, it also submitted to the trial court a privilege log listing records that were withheld or redacted documents on the basis of privilege.⁸ The Arizona Supreme Court eventually accepted review to provide guidance on the issue and, in doing so, provided four helpful lessons on the scope and application of the privilege.⁹

Four Lessons on the Scope and Application of Legislative Privilege

First, protected communications do not need to strictly relate to proposed or pending legislation.¹⁰ The privilege also protects “other matters placed within the legislature’s jurisdiction.”¹¹ These protected “other matters” will generally “bear the hallmarks of discretionary, policymaking choices that might have prospective implications, such as the creation of legislation, traditionally in areas where legislators have the power to act.”¹² Investigations frequently precede formal legislative action, so they are protected when they concern “a subject on which legislation could be had” or are “related to and in furtherance of a legitimate legislative act.”¹³ Because the legislature possesses authority to enact substantive election laws, the Audit was an “other matter placed within the jurisdiction of the legislature” and the Senate did not need to produce its internal communications “concerning the authorization, planning, and findings of the Audit.”¹⁴

 Second, the motives of the legislature (or legislators) are not relevant in determining whether the legislative privilege applies.¹⁵ While solely political or administrative acts fall outside the privilege’s protections,¹⁶ courts must “consider actions, not motives” in considering communications were administrative or political.¹⁷ Unprotected administrative acts include communications with officials or administrative agencies about administering a statute, communications about hiring and payment of consultants, and actions taken in compliance with a contract.¹⁸ Unprotected political acts include “making speeches outside of the legislature, preforming tasks for constituents, sending newsletters, issuing news releases, and the like.”¹⁹ Here, that meant the Senate needed to produce communications about topics like payment and employment of consultants, the public reaction to the Audit, and emails arranging lunch to discuss the audit.²⁰ But courts are not to scrutinize motives underlying other acts to determine whether legislators have lost the privilege.

Third, the privilege does not require a showing that disclosure would result in indirect impairment of legislative deliberations.²¹  “Legislative impairment is merely a guidepost to determine whether an act is legislative in nature; proving indirect impairment is not an additional requirement . . . .” ²²

Fourth, the Court endorsed the use of a privilege log consistent with pre-existing requirements in the Arizona Rules of Civil Procedure when the legislative privilege is asserted.²³  If the descriptions in the privilege log “adequately delineate legislative acts, the court must defer to these descriptions without conducting an in-camera review.”²⁴ The Legislature should also be given opportunities to revise descriptions that are insufficient to support a claim of privilege.²⁵ If the log entry does not provide sufficient specificity, the documents must be reviewed in camera to determine if the privilege applies.²⁶ But if the log entries establish a prima facie showing of privilege, then the party seeking disclosure must “establish, on a good faith basis, that an in camera review of the communications would reveal that legislative privilege does not apply.” ²⁷

Takeaways from Fann v. Kemp.

Although it is difficult to say at this early stage, Fann v. Kemp may well make it easier for legislative assertions of privilege. By eschewing any inquiry into either (1) legislative motive or (2) legislative impairment, which the Court of Appeals had required the legislature to prove, Fann v. Kemp appears to lighten the load on legislators seeking to invoke the privilege. 

On the other hand, the Supreme Court made clear that legislators cannot rely on vague descriptions in privilege logs to protect their communications from disclosure. For this reason, Arizona legislators should be cautious to describe communications sufficiently enough to establish a prima facie case of privilege. Anyone with questions about how Fann v. Kemp might impact assertions of legislative privilege going forward should consult legal counsel.

The several appellate opinions on public records law interpretation only highlight that review and clarification of the law by the legislature may be necessary. In addition to privileges, it is possible that the legislature may also address the impact (and requirements) of compliance with public records to third parties that engage with the government agencies.  Further, the legislature may fully incorporate the federal Freedom of Information Act exemptions that provide more clarity to agencies in trying to respond to public records request.  Further, the Arizona legislator may require an Arizonan (or corporate presence) residence requirement in making public records requests. As reformation of public records laws are considered, those doing business with or conducting watchdog-type activities should evaluate such proposed changed to ensure compliance with applicable law and guidance.