I’m Austin Evers, executive director of American Oversight. We have used public records litigation to release thousands of documents from the Arizona “audit” and we’re expanding our investigation. AMA.

Hi! What kind of tricks or tips do you have for Attorney Generals who’ve won Blackhole Awards and mysteriously can never find any public records when asked?

I wish we had some tricks! It really comes down to a few key ideas:

First, know the rules so you can ask for things you're allowed to get under the law.

Second, draft your requests as precisely as possible, especially when working with offices notorious for shirking their obligations.

Third, be relentless about your rights while being professional and respectful with the government employees on the other side.

American Oversight has the litigation muscle to enforce our rights in court, which makes a big difference. It shouldn't come to that, but it often does.

Thanks for what you're doing! I'm an Arizona resident who is appalled by the whole "audit" process. Is there anything we can do to help?

Arizonans who disapprove of the "audit" done in your names should think about contacting members of the legislature to complain. They thought this was a winning issue; it shouldn't be.

But also, don't forget the election officials who are facing so much distrust and vitriol based on conspiracies. A letter to the editor supporting them and thanking them for their work in the face of these attacks could go a long way.

What is the most important takeaway about what has been found so far in your opinion?

Big question! I'll focus on Arizona and the so-called "audit" they ran of the 2020 election. My big takeaway is that the government promised transparency but then fought it at every step. That's a signal that they don't want people to know what they are up to -- and a signal that relentless pursuit of transparency is important. If you want to see what we've done and found, check this out: https://www.americanoversight.org/investigation/the-arizona-senates-partisan-audit-of-maricopa-county-election-results

​

More broadly, I think the idea of using transparency to promote accountability gets reaffirmed over and over.

I would like to see an open crowd source Database/Wiki where court filings would be organized and shared as a free resource for incarcerated people to do legal research.

What are your thoughts. Can you help?

American Oversight generally posts our own litigation documents: https://www.americanoversight.org/documents?document_filter=true&doctypes%5B%5D=Litigation&facet_sort=default&document_keyword=&foia_number=&document_filter=true

We also post all our FOIAs, which can be used as models: https://www.americanoversight.org/documents?document_filter=true&doctypes%5B%5D=FOIA+Request&facet_sort=default&document_keyword=&foia_number=&document_filter=true

We also try to post as many of our records as we can: https://www.documentcloud.org/app?q=organization%3Aamerican-oversight-2456%20

CourtListener is a good resource: https://www.courtlistener.com

CourtListener has a browser extension, RECAP (PACER backwards) that automatically makes open source pleadings that someone views: https://free.law/recap

Does suing for these records risk setting a bad precedent?

In theory, litigation can result in bad precedent. However, most of our cases don't involve cutting edge legal issues that will set precedent; most involve the government just failing to meet its clear obligations. Forcing them to comply is good precedent! And where the government is willing to meet its obligations American Oversight is open to settling cases without getting a decision on the merits.

Thank you, for your work! Have any politicians tried working with you or do you prefer to keep them out of the process? Have any tried to use the information falsely?

Accountability takes work from every front. We're always thrilled to share documents we obtain with others conducting investigations, like partner organizations, journalists, and congressional committees. So, yes, we work with people in government.

In 2019, we launched our "parallel investigations initiative" to use outside FOIA investigations to bolster congressional oversight: https://www.americanoversight.org/investigation/parallel-investigations-initiative-amplifying-congressional-oversight-3

The work resulted in American Oversight getting documents about the Trump Ukraine scandal when the impeachment team in the House couldn't: https://www.americanoversight.org/investigation/the-trump-administrations-contacts-with-ukraine

We do our work independently based on our own priorities, but we love to share the results.

I can't think of an example of an official misusing the documents we get. That's actually the virtue of working with original documents: you can't really spin them; the facts are the facts.

In your opinion what is the best way to fight against conspiracy theories?

I'll stick to what American Oversight does: get the documents!

A lot of conspiracy theories and a lot of dishonesty in politics stem from people spinning and speculating in public. But you know where they don't spin? In their own emails when they aren't performing for the public. So we like to compare talking points and spin to the internal documents.

What's the best realistic strategy to reining back the Exemption 5 Deliberative Process Exemption??

This is a big issue.

For background, "Exemption 5" under the federal FOIA protects (i.e., lets the government withhold) privileged information, including some "internal deliberations." The theory is that it protects candid conversations within the government. In practice, the government has a history of using the privilege to shield information that isn't really deliberative, often because it is candid or embarrassing. Here's some background from a great organization, POGO: https://www.pogo.org/analysis/2020/02/the-most-abused-foia-exemption-still-needs-to-be-reined-in/

So what's our strategy?

First, we acknowledge that the privilege exists. We try not to spend resources battling for information legitimately protected by the exemption.

Second, we think about factors that might dissolve the protections. For example, if the government is communicating with outsiders, like lobbyists or political advisors, that may not qualify as an internal deliberation.

Third, obtain what you can about the deliberations. For example, we love getting senior officials' calendars, which show who they spend their time with and, consequently, what they prioritize. They can also help knit together open source research. Just look at all this great stuff! https://www.americanoversight.org/topic/calendars

Fourth, read documents very carefully. You never know when you'll spot a fact that reveals that a redaction is improper.

For more background on the abuse of redactions, and how American Oversight fights through them, check this out: https://www.americanoversight.org/did-the-trump-administration-abuse-the-redactions-process

An excerpt:

Redactions, the bane of FOIA requesters everywhere, are usually legitimate. But often, they are stretched to protect sensitive information (and sensitive people) from scrutiny. The so-called deliberative process privilege allows agencies to redact internal policy debates, such as discussions between the Office of Management and Budget and Defense Department personnel over how to draft appropriations hold language. But it is often abused — advocates routinely deride the government for treating the deliberative process privilege as the power to “withhold it because you want to.”
For instance, is it truly “deliberative information” that OMB received “Clear direction from POTUS to hold” the Ukraine aid — a line redacted in CPI’s documents — after the hold had been decided and even publicly reported on by POLITICO? Perhaps a lawyer for the government came up with an argument that it was, but saying that a directive isn’t deliberative is close to black letter law.
Moreover, deliberative process redactions should not be available to hide evidence of governmental wrongdoing. While we protect internal deliberations from disclosure so as not to chill them in the future, there is no public interest in protecting discussions that violate the law; it’s not a conspirator’s privilege.

Based on what you know now and otherwise has discovered through this process, do you have recommendations, general or specific, that could potentially help states alleviate concerns about fraud while not giving into the baseless claims that have been brought this last go round?

I think the most important thing for everyone to know is that every state has robust and effective protections against voter fraud already. The 2020 election was safe, secure, and legitimate. Thousands of election officials around the country worked tirelessly and in good faith to make that true.

Most of the people who raise concerns about election fraud know that--or should know that--but repeat concerns to cover for their losses or to delegitimize others and the system itself. They often raise allegations based on zero evidence and then try to leverage the resulting confusion and concerns to drive for damaging voter restrictions.

Want proof? American Oversight uncovered documents from Arizona that show officials taking cues from Rudy Giuliani and Donald Trump as they launched their scammy audit. We also showed how much money -- millions of dollars -- outsiders raised around the audit. I'll link some of this in a new comment.

So how do you alleviate fraud concerns? Listen to election officials and be skeptical of politicians tilting at windmills while fundraising based on stoking fears.

I wanted to come back to this question and give a more in-depth response about some of what we’ve found in our Arizona investigation. Here’s our key findings:

• The Trump administration and its intermediaries were involved from the beginning in urging the AZ Senate to find fraud.
• Hardcore partisans and conspiracists were involved in the planning and execution of the "audit."
• The "audit" was always intended to find fraud or otherwise cast doubt on the results of the election, and architects of the "audit" have been involved in a nationwide effort to that effect
• By design, the "audit" was crowdsourced and funded through opaque dark money groups.
  You can read more about these findings in this report: https://www.americanoversight.org/how-the-arizona-election-audit-has-already-been-compromised

More receipts!

Here are a few examples of documents we’ve obtained through our open records requests and litigation that support these main ideas.
The Trump administration and its intermediaries were involved from the beginning in urging the AZ Senate to find fraud.

12/28/20 - Arizona Senate President Karen Fann emailed a constituent saying “I have been in numerous conversations with Rudy Giuliani [sic] over the past two weeks trying to get this done. I have the full support of him and a personal call from President Trump thanking us for pushing to prove any fraud.” https://www.documentcloud.org/documents/20797902-arizona-senate-email-communications-regarding-maricopa-county-partisan-audit#document/p297/a2038573

11/14/20 - Sen. Fann’s email to Senate Republicans: “We are working with our Congressmen, State Party, Boards of Supervisors, Trump team etc to either prove or disprove concerns.” https://www.documentcloud.org/documents/21079443-arizona-senate-records-regarding-audit-received-oct-5-2021#document/p19

12/2/20 - Sen. Fann sent an email to constituent saying she had: “spoken with Mayor Giuliani at least 6 times in the past two weeks”” https://www.documentcloud.org/documents/20797902-arizona-senate-email-communications-regarding-maricopa-county-partisan-audit#document/p482/a2038575

12/4/20 - Email to Sen. Fann from Christina Bobb of the right-wing outlet OANN with “affidavits” from Rudy Giuliani alleging fraud. https://www.documentcloud.org/documents/20797902-arizona-senate-email-communications-regarding-maricopa-county-partisan-audit#document/p310/a2038574

Trump Campaign COO Jeff DeWit texted the “audit’s” spokesman Randy Pullen. DeWit indicated “Trump asking” whether it’s alright for donations to fund the audit to go to Fund the Audit by the America Project and asked whether Pullen is familiar with Jenna Ellis.
https://www.documentcloud.org/documents/21053139-arizona-senate-records-regarding-maricopa-county-election-audit-part-9_part3#document/p1535/a2052933;
https://www.documentcloud.org/documents/21053139-arizona-senate-records-regarding-maricopa-county-election-audit-part-9_part3#document/p1538

Hardcore partisans and conspiracists were involved in the planning and execution of the "audit."
​​Sen. Fann forwarded emails to “audit” officials on Aug. 5 and Sept. 14, the latter email regarding “7825 dead voters” that the writer claimed were found by conspiracy theorist Jovan Pulitzer, the likely source of the conspiracy theory that fraudulent ballots had been shipped in from Asia.
https://www.documentcloud.org/documents/21077366-arizona-senate-records-regarding-audit-received-october-4-2021#document/p3/a2058402;
https://www.documentcloud.org/documents/21077366-arizona-senate-records-regarding-audit-received-october-4-2021#document/p10/a2058400
Among the records we have uncovered is a Jan. 25 email from Pulitzer, which was forwarded by Sen. Fann to Sen. Warren Petersen, and Eddie Farnsworth, a former state senator who prior to leaving office in January had issued the original subpoenas to Maricopa County for the ballots and election materials. The email from Pulitzer appears to be a follow-up from a call with Sen. Fann, and Pulitzer outlined what his team would do with the ballots: “All that my team does is high-speed scan in all ballots in their native state … and allow machines to inspect without bias and produce a report.”
https://www.documentcloud.org/documents/20797902-arizona-senate-email-communications-regarding-maricopa-county-partisan-audit#document/p283/a2038572

​​On April 6, the group Protect Democracy sent a letter to Cyber Ninjas and other contractors, demanding that the groups cease any planned direct outreach to voters, which was mentioned in Cyber Ninjas’ statement of work. Fann forwarded the letter to Josh Barnett, a candidate for U.S. Congress who has posted frequently about the Q Anon conspiracy theory. “Now I know they are worried,” Fann wrote.
https://www.documentcloud.org/documents/20797902-arizona-senate-email-communications-regarding-maricopa-county-partisan-audit#document/p155

By design, the "audit" was crowdsourced and funded through opaque dark money groups.
An email containing an early Statement of Work (dated 3/8/21), which includes a reference to in-person canvassing operation led by former state legislative candidate Liz Harris and Bobby Piton (now a US Senate candidate in Illinois), and “unnamed analysts” as part of the “Electronic Voting System Team.” This version also indicates that funding would be provided by “patriots across the country” who “have desired for this audit to take place and have contributed funds to make that happen and lessen the load on the state of Arizona.”
https://www.documentcloud.org/documents/21069543-arizona-senate-records-regarding-maricopa-county-election-audit-received-sept-24-2021#document/p477
https://www.documentcloud.org/documents/21069543-arizona-senate-records-regarding-maricopa-county-election-audit-received-sept-24-2021#document/p486

Texts between Randy Pullen and Jeff DeWit, with DeWit asking about where to send $175k/Pullen indicating Guardian Defense Fund
https://documentcloud.org/documents/21053139-arizona-senate-records-regarding-maricopa-county-election-audit-part-9_part3#document/p1532/a2052932

Emails with Cleta Mitchell, a lawyer who had assisted with Trump’s attempt to overturn the election, regarding payment, including a 7/28 email exchange between Mitchell and Pullen citing $1m figure.
https://documentcloud.org/documents/21053125-arizona-senate-records-regarding-maricopa-county-election-audit-part-9_part2#document/p1716

It’s also worth noting that released by Cyber Ninjas do not convey the full extent of the “audit’s” funding, indicating that the operation cost nearly twice as much as previously indicated and that expenses exceeded funding by more than $2 million.
https://twitter.com/weareoversight/status/1455284777226022924

If I wanted to request records about something I only have a vague knowledge of existing, how do I go about filing a request for it?

As far I know you have to be very specific.

There's no doubt that being specific will help you. It makes it easier for the government employees to know what you are looking for. Think about requests in terms of basic metadate: who has the records? when would they have been created? what are some key words that might come up in a search?

Do you expect the privilege log files before the sanctions hearing?

I shouldn't get into negotiations and active litigation developments, but we have gotten some privilege logs from the AZ Senate: https://www.documentcloud.org/documents/21077483-arizona-senate-updated-privilege-log-and-index-sept-30?responsive=1&title=1