How far can an open records request go with digital data and is it far enough?

One local activist is attempting to find out the answer to the first half of that question. However, he believes that he may know the answer to the second half of the question and that’s ‘not far enough’.

Gays Mills resident Dennis Kern’s questions began when he learned that the cartridges used in the electronic voting machines, which contain the encrypted tabulations of electronically cast ballots, were not kept in Crawford County for the required 30 days after the election. State law requires that election materials be held for the 30-day period. After 30 days, the information is destroyed unless there is a contested election, recount or litigation pending.

Kern filed a Freedom of Information Act (FOIA) request with Crawford County Clerk Janet Geisler requesting the return of the cartridges for inspection. Open record laws give requesters the right to inspect any government record.

“It was political decision,” Kern said. “I was looking at the fact that Crawford County voted for Barrett in the first governor’s election and Shilling in the Kapanke-recall election and vastly voted in favor of Obama in the presidential election. The expectation was that Democrats would win the governor’s recall. Yet, Walker won by over a 100 votes in the recall. I was curious about why Crawford County would suddenly shift. I wanted to see more documentation and records than were available than online.”

When he sought to examine the records, he learned the cartridges had already been returned to a vendor for reprogramming for the upcoming primary, He requested they be made available for inspection.

Geisler complied with the FOIA request and the cartridges were returned by the vendor to Crawford County.

Why did they need returning in the first place? The vendor, a firm called Command Central, is based in Waite Park, Minnesota, near the Twin Cities. Command Central offered to store the cartridges between elections and Geisler accepted their offer. So, the cartridges were sent back after certification of the election by the Board of Canvassers.

In Geisler’s view, which is backed by the Government Accountability Board (GAB), this is not in conflict with the open records law. A paper record of electronic ballot votes is printed as they are made and it’s the paper record that is kept and reviewed in the event of a recount.

“I spoke to the state counsel for the G.A.B.,” said Geisler. “They have a different reading of the law than Kern and don’t see returning the cartridges early to Command Central as a problem.”

“Geisler asked me if I was going to make them get them back,” Kern said. “I felt it was right to insist that they be handled the same as the rest of the election materials. The law requires election materials be kept to ensure they are not tampered with. Janet got all the materials back. I asked if there was a means of reading them to ensure they had not been swiped or altered.”

The answer was no. The Open Records law has a few provisos.

According to Wisconsin Statute 19:35 (2)(e) “Except as otherwise provided by law, any requester has a right to receive from an authority having custody of a record which is not in a readily comprehensible form a copy of the information contained in the record assembled and reduced to written form on paper.” And in 19:36 (4) “A computer program … is not subject to examination or copying … but the material used as input for a computer program or the material produced as a product of the computer program is subject to the right of examination and copying.”

Kern can have a copy of the tabulations made by Command Central, but he cannot directly view them by reading the cartridge.

The cartridges exist in something of a legal morass. They contain information that is subject to the Open Records Law, but exist within a medium protected by intellectual property laws. The encryption programming is neither state property nor it appears is it subject to public scrutiny.

“Command Central offered to make a CD of the results for him (Kern),” Geisler said. “But, we cannot allow anyone to download the information on the cartridges.”

Geisler’s decision was based on the recommendations of the GAB.

In addition to the clauses in the Open Records statute, case law has already upheld that a public entity performing a state function involving digital information has some say in what they reveal. According to the Sunshine Review, a non-profit group that focuses on state and local transparency in government, the case of WIREdata, Inc. v. Village of Sussex determined that “records requests for records in digital form need not be delivered, nor should be delivered through allowing the requestor to view the original database, but can be delivered in any electronic format.”

“I was perfectly capable of downloading the information,” Kern said. “That was when Mark Peterson, the corporate counsel for Crawford County, called me and told me that the county would be charged $200 per cartridge. He was then told they could not be downloaded. The cartridge (pack) would have to go back to Command Central and they would download the information and provide the evidence that it had not been altered. That’s a bit like the police asking the murderer to provide the weapon for evidence in an investigation.”

Kern maintains that the protections limiting the viewing of election programming leaves their integrity at risk.

The physical integrity is easy to determine. Geisler bags and seals every pack in a sealed bag, sorted by precinct.

“I receive the voting machine cartridges from Command Central through Speedy Delivery and they are placed in my vault,” Geisler described. “Each municipality has a zippered pouch for the cartridges.  The bags are sealed with numbered security ties.  Before I seal the bags, I place a card inside of the pouch with the number from the security seal. The clerk must initial the card that is inside the pouch, which states that the seal on the zippered bag matches the number on the pouch.”

Chad Trice, Command Central’s Vice-President, said there were limits on the comments he could make about election security regarding the cartridges.

“The GAB has instructed us to not comment on this specifically,” Trice said when asked about the security used to ensure election programming was accurate and unaltered.

However, he was willing to comment on the physical custody of the materials.

“There is a chain of custody,” Trice said. “When it comes back to us it goes into inventory and is not touched unless we have to make a copy for an FOIA request.”

“The packs are encrypted, so anyone couldn’t just read them,” Trice explained. “Technology is constantly changing. We try to keep enough packs on hand for everyone without overstocking because the equipment requirements change. If municipalities had to use new media every election, it would be prohibitively expensive.”

That expense became a concern for Crawford County after Kern made his FOIA request. His desire to read the disks directly to ensure that information was not altered and the denial by Geisler left the clerk in a position where a determination of whether she had made a reasonable effort to meet the request.

“I certainly feel I have been very fair to Mr. Kern and have made every attempt to accommodate his requests,” Geisler stated. But to be safe, she was keeping the cartridges in her vault pending a determination by either the county counsel or the GAB’s General Counsel and President Kevin Kennedy.

If it was determined that having the cartridges present for a physical inspection was inadequate, or if it were but Kern challenged the determination, Geisler would have to hold them for an additional 60 days while the issue was resolved.

That raised a new issue. Another election was looming, a primary election is scheduled for Aug. 14, and Command Central wanted their cartridges back to be reprogrammed. They set a deadline of July 16 for them to be returned. If not returned, Command Central would charge the county $12,400 for new cartridges.

Some costs relating to meeting a FOIA can be recompensed through charging fees to the requestor. Until the June 27, 2012 ruling by the Wisconsin State Supreme Court, some record custodians believed a 2002 ruling expanded their authority to impose fees on public records requesters. Governor Scott Walker’s office had even asserted the right to “charge the actual necessary and direct cost of removing confidential information” from his office’s records.

The ruling of a few weeks ago recognized that it is the Legislature’s role, not its own, to establish public policy in this area. It said the Legislature “carefully provided” authorization to charge for four specific tasks — reproduction, photographic processing, location and mailing, but chose not to authorize any charge for time spent redacting information. The court “declined to expand the range of tasks for which fees may be imposed.”

This ruling would seem to mean that the cost of replacing the cartridges would be born primarily by the county.

Recognizing the difficulty this created, Kern chose to rescind his request on Monday, July 16.

As of Monday, Geisler with Kern’s decision to retract his FOIA request was able to send the cartridges back to Command Central. It is expected the Minnesota firm will reprogram the cartridges and send them back to the county in time for the primary election on Tuesday, Aug. 14.

“It is clear that Command Central is subverting open records requests by imposing exorbitant fees that will force clerks to send your vote tally back to Command Central to be burned,” Kern stated in his online blog.