Judge weighs whether Arizona Treasurer Yee must release more ESA spending records in 12News lawsuit

PHOENIX — A Maricopa County judge is weighing whether Arizona Treasurer Kimberly Yee’s office must release additional records detailing how hundreds of millions of dollars in Empowerment Scholarship Account funds have been spent.

The issue surfaced Tuesday during a hearing in an ongoing lawsuit filed by 12News seeking greater transparency into Arizona’s rapidly growing ESA program, which now serves more than 100,000 home, religious and private school students and costs taxpayers more than $1 billion annually. 

Although a recent Auditor General’s report identified a wide range of deficiencies with the state’s oversight of ESAs, no agency has conducted a full independent audit since the program was expanded three years ago. Republican leaders at the legislature have resisted calls for a full audit, drawing criticism from Democratic legislators, some ESA parents and even U.S. Senator Mark Kelly.

At the center of the legal dispute between 12News and the state is whether ESA transaction records maintained through third-party contractor ClassWallet qualify as public records under Arizona law.  

The Treasurer provides financial services for all state agencies and is required by law to manage the ESA program with the Department of Education.

Deputy Treasurer Jackie Harding, a top manager for Yee, testified Tuesday that while the office has direct access to ESA account information, downloading those records would amount to creating a new document — something she argued is not required under Arizona’s Public Records Law. ClassWallet is legally obligated to give access to the treasurer of all transactions.

Agencies are not required to create new records in response to a public records request, according to State law. They should provide access to existing records.

During cross-examination, 12News Attorney Matthew Kelley questioned Harding’s interpretation of the law.

“Downloading records from ClassWallet means making a new copy, right?” asked Kelley.

“No downloading means downloading it directly to our system,” Harding said.

“So what’s the difference?” Kelley said.

“The difference is with a copy, I have something on my system, and I’m going to create a copy of something in my system,” Harding said. “What’s in ClassWallet, we have to sign into a system that is not our system and download a document.” 

“And that’s creating a new record?” Kelley said.

“It is to me,” Harding said.

Attorneys for 12News argued the Treasurer’s Office has already demonstrated it can produce ESA transaction data. Attorneys for Yee transported a dozen boxes filled with binders of documents and placed them in the courtroom – a visible sign of the sheer volume of records that have already been turned over in the case.

12News reporter Craig Harris, a plaintiff, testified that the records produced so far by Yee’s office represent a portion of what 12News has requested. 

12News previously settled a public records lawsuit with State Superintendent Tom Horne’s office.

The Treasurer’s Office and the Department of Education have joint oversight of the program.

The dispute intensified last year after Yee announced her campaign for Arizona superintendent of public instruction. 

12News reported that during that announcement, Yee said her office could no longer comply with the public records request they had previously.

“There have been a number of changes from the program from an administrative function,” Yee told Harris in May 2025. “Just letting you know there have been updates.”

Harris testified he repeatedly attempted to resolve the issue with the Treasurer’s Office, but received little response from Yee’s staff.

“They have not taken my calls,” Harris said in court. “They have not asked to modify my request by email.”

An attorney for Yee questioned why 12News’ attorneys had not reached out to him to discuss a compromise.

The hearing comes one week after an Arizona Auditor General report sharply criticized oversight of the ESA program. It described the department’s auditing system as haphazard and said the agency failed to follow its own methodology, and had not recovered the majority of misspent funds identified in a small sample of transactions.

Yee, who is running against state Schools Chief Tom Horne for his job, used that report to blast Horne last week during a debate.

“The ESA audit did show there is complete chaos in the Department of Education with respect to the management of the ESA program under Tom Horne,” Yee said last week.

Yee’s office also claimed Tuesday that they face two other barriers to complying with the 12News request. One is logistical because the program has grown too large to scour and redact all related records requested by 12News. The other relates to protecting the privacy of children who may be mentioned in records.

Yee’s attorney questioned Harris about why he needed the treasurer’s identification number tied to ESA accounts. The number tracks spending activity over time to a single user but is not publicly linked to the account holder’s name.

“Isn’t it fair that it’s like a bank account or Social Security number?” said Brett Johnson, one of several attorneys working for Yee. 

“No, absolutely not,” Harris responded.

When pressed on whether a user I.D. could be used to identify account holders, Harris disagreed.

“It would be nearly impossible. There are over 100,000 ESA students,” Harris said.

Yee previously posted more than 100,000 ESA account numbers on her agency’s website under a site that tracked transparency in how state tax dollars are spent.  

Judge Christopher Whitten asked both sides to submit written summaries of the evidence presented during the hearing. He indicated he may issue a ruling in June.

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