Timothy White v. Skagit County Island County ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TIMOTHY WHITE,
No. 72028-7-1
Appellant,
DIVISION ONE
v.
SKAGIT COUNTY and ISLAND PUBLISHED OPINION
COUNTY,
FILED: July 13, 2015
Respondents.
Becker, J. — Skagit and Island Counties denied a Public Records Act
request for copies of voted ballots. In view of Washington's constitutional and
statutory provisions protecting ballot secrecy, we hold the requested records are
exempt.
The 2013 general election was held on November 5. The next day,
Appellant Timothy White made a request of Skagit and Island Counties under the
Public Records Act, chapter 42.56 RCW. He asked for "copies of electronic or
digital image files" of all pretabulated ballots received, cast, voted, or otherwise
used in the election.1 Both counties denied the request.
1 White sent the same Public Records Act request to all counties in
Washington State.
No. 72028-7-1/2
The Public Records Act requires that agencies make all public records
available for inspection and copying, unless the record falls within the specific
exemptions of RCW 42.56.070(6), chapter 41.56 RCW, or an "other statute" that
exempts or prohibits disclosure of specific information or records. RCW
42.56.070(1). The issue in this case is whether copies of ballots are exempt
under an "other statute." An exemption may be found in an "other statute" even if
it is not stated explicitly. RCW 42.56.070(1); Progressive Animal Welfare Soc'v
v. Univ. of Wash., 125 Wn.2d 243, 263-64, 884 P.2d 592 (1994) (PAWS)
(antiharassment statute was an "other statute" exempting the names of animal
researchers from production pursuant to a request for a grant proposal even
though the statute did not explicitly state the names were exempt).
The dispute came before the Snohomish County Superior Court on a
show cause hearing on February 13, 2014. The court considered declarations
submitted by the parties and by the Secretary of State. The court ruled that even
though no statute states an explicit exemption for voted ballots, they are exempt
under various election statutes codified in Title 29A RCW:
The statutory scheme controlling ballots in RCW Chapter
29A is very long and complex and, therefore, how it expressly
exempts ballots from public records disclosure cannot be found in
just one quote from one statute. However, taken as a whole, RCW
Chapter 29A expressly exempts election ballots from disclosure as
public records.
In a comprehensive memorandum decision, the superior court observed that the
secrecy of a citizen's vote "is the cornerstone of a free democratic government."
"Given the numerous and unpredictable ways ballot disclosure could be used to
ascertain voters' identities, given the possibility of human error if we rely on
No. 72028-7-1/3
people to individually redact thousands of ballots for identifying information, given
the constitutional requirement for absolute secrecy, given the disruption to public
confidence in election results that could be caused by endless private reviews of
ballots," the court determined that the legislature did not intend to subject ballots
to the Public Records Act.
White appeals.
Because the record consists of documentary evidence only, this court
stands in the same position as the trial court. Mitchell v. Dep't of Corr.. 164 Wn.
App. 597, 602, 277 P.3d 670 (2011). Our review is de novo. Fisher Broad.-
Seattle TV. LLC v. City of Seattle. 180 Wn.2d 515, 522, 326 P.3d 688 (2014).
BALLOT SECRECY
The Washington Constitution requires the legislature to provide for a
method of voting that will "secure to every elector absolute secrecy in preparing
and depositing his ballot."
Ballot
All elections shall be by ballot. The legislature shall provide
for such method of voting as will secure to every elector absolute
secrecy in preparing and depositing his ballot.
Wash. Const, art. 6, § 6.
The constitutional mandate for a secret ballot is implemented by statutes
codified in Title 29A RCW. For example, all ballots, when received in their return
envelopes, "must be placed in secure locations from the time of delivery to the
county auditor until their subsequent opening. After opening the return
envelopes, the county canvassing board shall place all of the ballots in secure
storage until processing." RCW 29A.40.110(2). Immediately after tabulation, i.e.
No. 72028-7-1/4
counting, all ballots must be sealed in containers from which they may be
removed only in narrowly specified circumstances. RCW 29A.60.110.
The record contains declarations by county employees explaining how
ballots are processed. After signatures and postmarks are verified and the
ballots have been removed and separated from the envelopes, ballots are
manually inspected for damage, write-in votes, and incorrect or incomplete
marks. Damaged and write-in ballots may be duplicated at this point "only ifthe
intent of the voter's marks on the ballot is clear and the electronic voting
equipment might not otherwise properly tally the ballot to reflect the intent of the
voter." RCW29A.60.125.
Digital images of all ballots do exist for a short time when ballots are
scanned into the first of two computers. The images are then converted into a
proprietary format. Once this conversion has taken place, the images do not
exist as separate image files that can be exported or copied. The data is
transferred to the second computer for tabulation. The information transferred
does not contain images. It contains binary code that instructs the second
computer program how to convert the marks into vote counts. The second
computer runs a program that tabulates the votes. Scanning and tabulation of
votes continues as necessary until the election is certified. While this process
occurs, all ballots—including originals and duplicates—are maintained in a
secure area from the moment they are deposited or received until they are
eventually destroyed.
No. 72028-7-1/5
White maintains that he is entitled to copies of the digital image files of all
ballots pretabulation, that is, as they existed before the images are converted into
the data that is transferred to the second computer for tabulation. He requested
that the copies be transmitted to him in a format readable on his home computer.
The counties resist White's request in part to protect ballot secrecy and in
part because of practical considerations. As far as practicality is concerned, the
counties state that their current technology does not automatically store image
files of ballots in a format readable on a home computer. They explain that it
would take so much time to "screen print" each ballot as it goes through the
scanner that it would interfere with the timely administration of the election and
certification of the results.
In resolving this dispute, we will assume that it may be technologically
feasible—if not now, then perhaps in the future—to make copies of electronic or
digital image files of all pretabulated ballots without delaying the election results.
Even so, the fundamental issue that must be addressed is whether ballot images
are exempt as a matter of law from production under the Public Records Act.
White argues that the image files he has requested are "election records,"
not "ballots." In his view, "each voter has only one ballot per election, not many."
The paper ballot on which the voter's choice is recorded is, according to White,
the only legal "ballot" as that term is used in Title 29A RCW. Copies and images
of ballots, he contends, are unprotected by the statutes implementing the
constitutional mandate for ballot secrecy.
No. 72028-7-1/6
A statute lists four definitions of "ballot," to be chosen "as the context
implies":
(1) "Ballot" means, as the context implies, either:
(a) The issues and offices to be voted upon in a jurisdiction
or portion of a jurisdiction at a particular primary, general election,
or special election;
(b) A facsimile of the contents of a particular ballot whether
printed on a paper ballot or ballot card or as part of a voting
machine or voting device;
(c) A physical or electronic record of the choices of an
individual voter in a particular primary, general election, or special
election; or
(d) The physical document on which the voter's choices are
to be recorded
RCW 29A.04.008(1). White's preferred definition—"The physical document on
which the voter's choices are to be recorded"—is only one of the four definitions.
RCW29A.04.008(1)(d).
In Title 29A RCW, the legislature has gone into great detail to ensure that
the process of collecting, counting, storing, and ultimately destroying ballots
achieves the constitutional mandate for a secret ballot. The only statutory
provision for copying of ballots is found in RCW 29A.60.125. The statute permits
duplication "only if the intent of the voter's marks on the ballot is clear and the
electronic voting equipment might not otherwise properly tally the ballotto reflect
the intent of the voter." Ballots must be duplicated by teams of two people, and
those people must record their actions in writing to create and maintain an audit
trail of the actions they take. RCW 29A.60.125. Original and duplicate ballots
must be sealed in secure storage at all times, "except during duplication,
inspection by the canvassing board, or tabulation." RCW 29A.60.125.
No. 72028-7-1/7
The statutes governing the handling and storage of ballots must be
interpreted in the context provided by the constitutional mandate for ballot
secrecy. In that context, the term "ballot" does not just refer to the physical
document on which the voter's choices are marked. A facsimile, a physical copy,
an electronic record or image file of the physical document on which the voter
places a mark is just as much a "ballot" as the physical document itself. The
statutes do not in any way suggest that the legislature meant to allow electronic
or digital images of ballots to be more available for public inspection and copying
than the original ballots. We interpret the fourfold definition of "ballot" as
reflecting legislative intent to define "ballot" as broadly as possible to fulfill the
constitutional mandate for absolute secrecy.
Releasing voted ballots for general public inspection would risk revealing
the identity of individual voters. According to a declaration from the Elections
Director in the Office of the Secretary of State, voters sometimes place
identifying marks on ballots contrary to voting instructions, for example by signing
their names when making corrections or by writing comments about their intent.
Each time ballots are handled, there is the potential to misplace, damage, or lose
them. And as the Elections Director explains, where there is low turnout in a
small precinct, even a ballot devoid of identifying marks can be tied back to a
voter by comparing it with voters credited with returning ballots on particular
dates.
Releasing copies or images presents the same risk of identification of
voters as disclosure of the paper ballot. To hold that a copy or duplicate or
No. 72028-7-1/8
image file must be produced in response to a public records request would
undermine the constitutional mandate for absolute secrecy of ballots. We
conclude that the records White requests are "ballots" and they are subject to the
strict statutory regulation of ballot handling and storage.
White argues that the statutory objective is to keep ballots secure, an
objective he believes can be met while still allowing copies to be produced upon
request. White points out that when there is an election contest, members of the
public are allowed to serve as witnesses to the recounting of ballots. RCW
29A.64.030; RCW 29A.64.041(3); ch. 29A.68 RCW. In White's view, any
member of the public should similarly be allowed to see scanned images of
ballots before tabulation occurs. Such public access to the process, he argues,
would ensure that the process of judging questionable or ambiguous ballots is
not corrupted by tampering or distorted by incompetence.
The amicus brief of the Secretary of State succinctly describes the many
provisions that already exist for citizen oversight of elections:
The political parties and other organizations can designate official
observers whom the county auditors must allow to observe the
county's centralized counting center where ballots are processed.
RCW 29A.40.100; RCW 29A.60.170. Before an election, observers
and the public must be permitted to observe testing of vote tallying
systems. RCW29A.12.130. Once ballot processing begins,
counting centers must be open to the public. RCW 29A.60.170;
WAC 434-261-010. Anyone can watch, but only employees and
those specifically authorized by the county auditor can touch any
ballot, ballot container, or vote tallying system. WAC 434-261-010.
Political party observers can call for a random check of ballot
counting equipment. RCW 29A.60.170(3). Observers may also
attend any recount, though they cannot handle ballots or record
information about voters or votes. RCW 29A.64.041.
When election officials question the validity of a challenged
or provisional ballot, or when the intent of the voter cannot be
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No. 72028-7-1/9
resolved, the county canvassing board determines how the votes
will be counted. RCW 29A.60.050, .140. Meetings of the county
canvassing board are open public meetings. Notice must be
published, and the board must make any rules available to the
public. RCW 29A.60.140(5); WAC 434-262-025. Where
canvassing boards display a ballot, they cover any marks that could
destroy absolute ballot secrecy. See Const, art. VI, § 6.
Finally, the county auditor must prepare and make publicly
available detailed reports that precisely reconcile the number of
ballots received, counted, and rejected, including specific
accounting for various ballot types (for example, provisional
ballots). RCW 29A.60.235. Public oversight of ballot processing
and tabulation from start to finish, along with public reconciliation
reports, allow a public check on all elections.
White's argument that even greater transparency would promote public
confidence in elections is a matter of policy for the legislature to consider. It is
not supported by the statutes as they are currently written. Allowing observers at
various stages of ballot processing is fundamentally different from allowing every
member of the public to inspect images of every ballot cast. Ballot boxes are not
to be opened nor votes recounted "on mere suspicion and on mere demand."
Quiqlev v. Phelps. 74 Wash. 73, 81, 132 P. 738 (1913). The statutes that
regulate the handling of ballots do not manifest a legislative intent to facilitate
public inspection of voted ballots. They manifest a legislative intent to protect
ballot secrecy by maintaining the integrity of ballot processing and tabulation.
The legislature's intent that Title 29A RCW serve as a comprehensive
scheme restricting access to ballots is evident from the fact that the legislature
has specified that certain nonballot election records may be disclosed to the
public. See RCW 29A.08.720, .770, .810, .835; RCW29A.40.130; RCW
29A.60.070, .195, .235. As stated by the trial court, it would be superfluous for
the legislature to single out specific types of election records as subject to public
No. 72028-7-1/10
disclosure unless the legislature viewed them as "exceptions in a statutory
scheme that otherwise does not permit public disclosure."
On occasion, courts in other states have allowed ballot images to be
released to the public. White cites Marks v. Koch. 284 P.3d 118 (Colo. App.
2011). cert, dismissed as improvidentlv granted, No. 11SC816 (June 21, 2012),
and Price v. Town of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26. These cases
are not persuasive in our interpretation of Washington law, as they were decided
within different statutory frameworks and under different factual circumstances.
We conclude that in Washington, all "ballots," including copies, are exempt
from production under the Public Records Act by Title 29A RCW—an "other
statute." The exemption is necessary to protect the "vital governmental function"
of secret ballot elections. RCW 42.56.210(2). We join our colleagues in Division
Two, who recently reached the same conclusion in White's similar appeal of a
decision dismissing his action in Clark County. White v. Clark County. No.
46081-5-11 (Wash. Ct. App. June 30, 2015).
BALLOTS NOT SUBJECT TO REDACTION
"Ifthere is information in a public record that is exempt and redaction and
disclosure is possible, then it is required." Ameriquest Mortg. Co. v. Office of
Attorney Gen.. 177 Wn.2d 467, 487, 300 P.3d 799 (2013). White contends that
redaction of potentially identifying marks from the electronic or digital copies of
ballots will adequately serve the public interest in ballot secrecy protected by Title
29A RCW, while also accommodating the public interest in government
transparency that is protected by the Public Records Act.
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No. 72028-7-1/11
The trial court ruled that redaction would not make disclosure possible:
The constitutional mandate of absolute secrecy could not be
adequately accomplished by just having government employees
use their own discretion as to what is identifying on a ballot and
what needs redaction. Nor are such employees even in a position
to accurately ascertain what information could or could not be used
to identify a vote. For example, only two citizens voted at the voting
machine in this election. If someone had staked out the machines
and saw who voted on them, that information combined with copies
of the voting machine votes and metadata showing when they were
cast could be used to identify who cast those votes. Likewise,
patterns in voting data and how information can be used to identify
voters may not be readily apparent to an election employee who
may not have all election data before him at once or may not be a
trained computer data expert. For example, disclosing a fax cover
sheet separate from a fax vote would not seem problematic—
unless you realized only one fax vote was cast. Likewise, a ballot
with a write-in vote for John Smith may not seem on its face to
identify who the voter is, unless you also know John Smith is the
voter who cast the ballot. Election employees are not permitted to
know who cast a ballot.
The sheer number of documents that would have to be
reviewed for redaction by fallible humans without any rules or set
procedures and the numerous unpredictable ways the documents
could reveal voter identity are such that mistakes would be made
absent clear protective rules and set procedures. If a ballot has a
handwritten name is the chance someone will identify the
handwriting a sufficient reason for nondisclosure? Is disclosure of
a write-in vote in the same name as the voter a violation of absolute
secrecy? Is a doodle on the ballot an identifying mark or not? A
single mistake means the constitutional mandate for absolute
secrecy is violated. The Washington Constitution does not allow a
scheme that provides for only substantial secrecy and that
occasionally allows the identity of voters casting ballots to be
mistakenly revealed. Unbridled and undirected discretion vested in
numerous employees as to what is or is not too great a risk for
violating secrecy would not comply with the constitutional mandate.
The Constitution requires absolute secrecy. Const, art. VI, § 6.
If the legislature intended to allow public disclosure of copies
of individual ballots it constitutionally would have crafted substantial
safeguards into that process to assure absolute secrecy. RCW
Chapter 29A provides no procedures to protect the secrecy of the
vote upon Public disclosure because public disclosure is not
contemplated. The lack of any such statutory safeguards indicates
the legislature had no intention that ballots be subject to public
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No. 72028-7-1/12
disclosure. Compare, RCW 29A.60.230, providing a special
protection for aggregating public election results when the number
of voters is so low in a precinct that separate reporting of precinct
results may reveal identity).
We agree with the trial court's reasoning. Redaction will not eliminate the
risk that disclosing copies of ballots will reveal the identity of individual voters.
Ballots are exempt in their entirety.
ADEQUACY OF COUNTY RESPONSES
White argues that even ifthe ballot images are exempt, he is entitled to an
award of attorney fees and a daily penalty under the Public Records Act because
the counties' responses were insufficient.
Agency responses refusing inspection of any public record must include a
statement of the specific exemption authorizing the withholding of the record and
"a brief explanation" of how the exemption applies to the record withheld. RCW
42.56.210(3). In order to satisfy the exemption requirements, the public agency
must identity the specified record, cite statutory exemptions, and briefly explain
how the exemptions apply to the requested records. PAWS, 125 Wn.2d at 271
n.18. Claims of exemption should contain enough details to (1) enable a
requestor to make a threshold decision about whether the exemption was proper
and (2) enable judicial review of the decision to withhold. Rental Hous. Ass'n of
Puget Sound v. City of Pes Moines. 165 Wn.2d 525, 540-41, 199 P.3d 393(2009); Sanders v. State, 169 Wn.2d 827, 845-49, 240 P.3d 120 (2010).
Skagit County provided White with a 2,111-page exemption log. The log
listed each ballot withheld by its serial number and gave, for each, the same brief
explanation.
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No. 72028-7-1/13
RCWs 29A.60.125, 29A.60.110 and WAC 434-261-045 (which are
other laws preventing disclosure pursuant to RCW 42.56.070(1))
require ballots to remain in secure storage unless opened by a
court or canvassing for a specific authorized purpose.
White contends Skagit County's exemption log was unsatisfactory
because it did not explain why the identified provisions for secure ballot storage
applied to digital images and metadata. We disagree. The statute requires a
"brief explanation," not an explanatory brief. Skagit County's citation to two
statutes and a regulation enabled White, and ultimately the trial court, to assess
whether or not images of voted ballots are subject to the same provisions for
secure storage as the originals.
Island County took a different approach. Instead of an exemption log
identifying each ballot by serial number, Island County provided White with a
single explanatory letter:
The records you requested are digital files and associated
metadata and properties for ballots in the November 5, 2013
general election. The county received one ballot by fax for this
election. Only two voters voted by voting machine. The County
received 28 e-mailed ballots for this election as of November 6,
2013. And the number of ballots scanned so far for this election is
28,668.
For each of the scanned ballots a corresponding digital image file
exists for each side of each ballot; each ballot for this election is a
single page with two sides. There is metadata associated with
each digital image file and with the e-mail ballots.
Because the County is not permitted to access the digital files or e-
mails for reasons described below, the County cannot list each
digital file and e-mail at this time. Similarly, the County is unable to
access the specific date each file or e-mail was created.
Furthermore, any image files or metadata containing information
regarding the sender of the ballot (such as the initials or signature
of the voter handwritten on the ballot or metadata associated with
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No. 72028-7-1/14
the e-mails) is exempt from disclosure pursuant to RCW
29A.84.420.
1. Electronic or digital ballot image files.
RCW 29A.40.110, RCW 29A.60.125 and RCW
29A.60.110 require that ballots be sealed in secure
storage at all times other than at those specific times and
for those specific purposes set forth by statute. See also
WAC 434-261-045 and WAC 434-235-040(3). This
requirement applies to government employees and
officials as well as to others. Consequently, making or
releasing copies of ballots without an order from a
Superior Court Judge would constitute a violation of
these statutes. Pursuant to RCW 29A.04.008, this
applies to copies of ballots in any format, including copies
of digital ballot images or e-mailed ballots.
Because a specific statute prohibits their release, these
records are being withheld in their entirety under RCW
42.56.070(1), which references documents exempt from
disclosure under other statutes. We will not release the
ballot images without a court order as described by
statute.
White argues that Island County's response violated the act by not
providing an exemption log at all. We disagree. It is unnecessary to provide an
exemption log repeating the same explanation thousands oftimes for the same
type of document. Island County's succinct and informative letter efficiently
fulfilled the "brief explanation" requirement.
White contends both counties' responses should be deemed inadequate
and vague because they did not specifically respond to the seven categories of
ballot images that he requested. But each county identified the same
exemptions for all ballots withheld. It would have been pointless to repeat the
same explanation for each of the seven categories within the universe of all
ballots.
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No. 72028-7-1/15
White contends Skagit County should be penalized for failing to respond
to his request for "the original metadata and Properties of the electronic or digital
files requested." White did not clarify this request when asked. "If the requestor
fails to clarify the request, the agency .. . need not respond to it." RCW
42.56.520.
White contends that a request for metadata need not be clarified because
the term is well defined in O'Neill v. City of Shoreline, 170 Wn.2d 138, 143,147,
240 P.3d 1149 (2010). He argues that the County was feigning ignorance about
metadata in order to avoid the duty to search for it. In the circumstances of this
case, we disagree. It was not unreasonable for the County to ask White to
explain how or what part of metadata associated with the electronic or digital files
could be a public record, given the County's position that the electronic or digital
files themselves were exempt as ballots. As the trial court correctly concluded,
White's failure to respond to the request for clarification excused the County from
trying to explain more specifically why the "metadata and Properties" were
exempt.
Because the counties did not violate the Public Records Act, there is no
basis to assess penalties or attorney fees against them.
REQUEST TO CONSIDER ADDITIONAL EVIDENCE
White requests that this court consider a declaration that Pierce County
made ballot images public in connection with a past election. Under RAP 9.11,
this court may consider evidence that was not before the trial court if, among
other things, additional proof of facts is "needed to fairly resolve the issues on
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No. 72028-7-1/16
review" and the additional evidence would probably change the decision being
reviewed. White contends the evidence is necessary to show that "the kinds of
records at issue in this case are already made public in Washington, despite the
counties' claims to the contrary." The counties oppose the motion. They have
submitted a declaration that the information posted by Pierce County in
connection with a ranked choice or "instant runoff' election conducted in 2008
consisted only of a series of numbers containing information pulled from the
ranked choice voting ballot cards by optical scan voting equipment.
The declaration submitted by White does not prove that Pierce County has
ever posted digital images of ballots. But even if that had happened, evidence of
the occurrence is not needed to fairly resolve the issue on review. Our decision
that copies of electronic and digital image files of ballots are exempt from the
Public Records Act is rooted in the constitutional mandate for ballot secrecy and
the implementing statutes.
MOTION TO STRIKE
Granting a motion by the counties, we strike sections B and C of White's
answer to the amicus brief filed by Washington Coalition for Open Government.
An answer to an amicus brief "should be limited solely to the new matters raised
in the brief of amicus curiae." RAP 10.3(f). Rather than answering new matters
raised by the Coalition, White responded to the counties' arguments made in
their answer to the Coalition's brief.
The counties request fees and costs under RAP 18.9 as a sanction for a
frivolous appeal. White's appeal is not frivolous. We deny the request.
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No. 72028-7-1/17
Affirmed.
WE CONCUR: 6
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17