����Ӱ��AV

In a unanimous ruling, the three-judge panel acknowledged that AUDIT-USA had sought copies of certain records from the 2022 election. When the county denied it, there was a new request, also rejected.

But Judge Peter Eckerstrom said none of that permitted the county to start its own lawsuit against AUDIT-USA, and ask a trial judge to rule that the records sought were not public.

That would undermine the purpose of the state’s Public Records Law, Eckerstrom said.

“We acknowledge that granting public bodies such authority would burden a requester’s statutory right to seek public records with the risk of defending a lawsuit,’’ he wrote.

“Such a burden could frustrate the purpose for which our public records laws were enacted: to promote transparency in government by allowing the public access to official records and other government information so that the public may monitor the performance of government officials and their employees,’’ Eckerstrom wrote.

But the appellate court refused to set a hard-and-fast prohibition against such lawsuits. Eckerstrom said there could be situations where a government agency, seeking to avoid improperly denying a request for public records, might seek a court ruling, “an action that would arguably promote transparency in government.’’

What’s behind all this is a request made by AUDIT-USA to Santa Cruz County for various 2022 election records, including ballot images and the “cast vote record,’’ essentially a digital representation of every vote cast. County officials agreed to produce everything except the CVR.

AUDIT-USA did not challenge the denial, at least in part, said John Brakey, the organization’s director, because it has limited resources.

But the day those records the county had promised were supposed to be available, the county instead filed its own lawsuit against AUDIT-USA in Pima County, where Brakey lives.

Pima County Superior Court Judge Casey McGinley tossed the lawsuit. And he refused to reinstate it even after AUDIT-USA submitted a new request for the CVRs.

Eckerstrom, writing for the appellate court, agreed there is no legal basis for what the county was trying to do.

He said court rules entitled judges to consider “specific adverse claims’’ based on facts as they exist, cases that are “ripe for judicial determination.’’

By contrast, Eckerstrom said, there was no actual dispute on which a trial judge could rule.

What would have provided legal standing, he said, is if AUDIT-USA had actually sued for the denial of the records. But that did not occur, with a request which, while made multiple times, never actually resulted in a lawsuit.

The ruling is a crucial protection for those who seek records, said Ken Bennett, chairman of AUDIT-USA.

“The court is essentially saying public bodies, government bodies, can’t sue people for simply asking for public records,’’ said the former Republican state senator from Prescott.

“The Public Records Law of Arizona says that you either give them the public record, that they are public records, or you give them a statutory citation that says why they’re not public records,” he said. “But you don’t sue people for asking for public records.’’

Still, the ruling is not a complete win for AUDIT-USA.

Brakey pointed out that the decision does not permanently close the door to government agencies filing such lawsuits against those who ask for records. He said his organization is weighing an appeal to the Arizona Supreme Court.

There’s also the issue of legal fees.

The trial judge did agree that AUDIT-USA was entitled to $20,000 in legal fees for the first court fight. But the trial court decided that it would not impose financial sanctions and additional fees against Santa Cruz County for repeated efforts to advance its lawsuit.

Eckerstrom said such penalties are appropriate when a lawsuit is filed “without substantial justification.’’

“That standard requires more than a failed legal position,’’ he said. “It demands a showing that the claim was both groundless and not made in good faith, such that the claiming party knew or should have known the claim lacked merit.’’

In this case, Eckerstrom said, there was some “legal uncertainty’’ about whether the cast vote record could be released.

“Thus, although the county’s filing was procedurally defective, the concerns underlying it were supported by a plausible reading of applicable statutes and a genuine effort to clarify legal obligations in the face of conflicting statutes,’’ the judge wrote.

But Eckerstrom said AUDIT-USA is entitled to whatever it costs the organization to file this successful appeal.

In a prepared statement, the Santa Cruz County Board of Supervisors acknowledged both the trial judge and Court of Appeals said there was no legal basis for the lawsuit. But the board said it still believes the CVRs — which were never released — are not public records and defended the lawsuit as a “good faith effort to seek clarity on a complex and evolving legal matter.”