Arizona’s top lawyer just got a sharp reminder that public records law is not a “trust us” arrangement. Last Wednesday, Arizona’s Court of Appeals vacated a lower court’s judgment and ruled that Attorney General Kris Mayes improperly withheld information about communications between her office and the States United Democracy Center. A unanimous three-judge panel found that the office’s privilege log and its search for records were legally inadequate and sent the dispute back to the trial court. The ruling concerns records tied to Mayes’ probe of so‑called “fake electors” from the 2020 election, and it does not immediately force public release of the documents.
Appeals Court's Ruling
The court’s opinion, filed last Wednesday and available from the Arizona Court of Appeals, wiped out the trial court’s judgment and remanded the case for more work. Writing for the unanimous panel, Judge Jeffrey Sklar warned that “index entries must contain more than generalities.” In practical terms, the ruling tells the attorney general’s office it has to spell out what it is withholding in enough detail that the trial judge can seriously test the office’s privilege claims.
What The Judges Found
The panel concluded that Mayes’ office submitted a privilege index with only two entries to cover about 50 separate items, roughly 21 emails and 29 attachments, and that the log left out basic information such as dates, sender and recipient names, and descriptions of the material. As reported by the Arizona Capitol Times, the court also criticized the office for narrowing its records search to limited dates and specific keywords instead of producing all communications that were responsive to Judicial Watch’s request. Under Arizona precedent, the judges said, such bare-bones logs do not allow for meaningful judicial review of claims that documents are privileged.
Why It Matters For The Fake-Electors Probe
The records fight is not happening in a vacuum. The withheld materials include a July 2023 memo States United prepared that laid out possible charges and defenses related to alternate-elector activity in Arizona. That memo and related materials were part of what prosecutors cited in indictments charging 11 Republican electors and several associates, prosecutions that have been put on hold after a trial judge found prosecutors withheld relevant grand-jury information. Local reporting on how the appeals ruling intersects with those indictments is summarized by PinalCentral.
Reaction
Tom Fitton, president of Judicial Watch, told the Arizona Mirror that the decision exposed what he labeled “gamesmanship” by the attorney general’s office in handling the records request. Richie Taylor, a spokesman for Mayes, told the Mirror that the office “disagree[s] with the court’s analysis” but said it will “abide by the ruling” and provide a more detailed privilege log as the judges directed.
Legal Implications
On paper, the appeals court did something fairly technical: it vacated the trial court’s judgment and sent the matter back so a judge can meaningfully evaluate whether the withheld materials are truly privileged, as the opinion explains. In doing so, it ordered the attorney general’s office to produce a privilege log specific enough to allow scrutiny under the Arizona Supreme Court’s Fann v. Kemp standard or risk a ruling that the records must be disclosed. The court also noted that Judicial Watch, as the party that prevailed on appeal, may be entitled to recover costs, although it declined to award attorneys’ fees at this stage. How much of the paper trail ultimately becomes public will depend on what happens on remand and whether anyone takes the fight back up on appeal.
