Re: What should be in a good open records law?

From: Doug Kellner <dkellner_at_elections_dot_state_dot_ny_dot_us>
Date: Mon Aug 06 2007 - 17:08:02 CDT

 In addition to New Yorkıs comprehensive Freedom of Information Law (New
York Public Officers Law §§ 84-90, the Election Law contains a fairly
detailed list of required public records.

    NEW YORK ELECTION LAW
 § 3-220. Records and photostats; preservation and sale. 1. All
  registration records, certificates, lists, and inventories referred to
  in, or required by, this chapter shall be public records and open to
  public inspection under the immediate supervision of the board of
  elections or its employees and subject to such reasonable regulations as
  such board may impose, provided, however, that a voter's driver's
  license number, department of motor vehicle non-driver photo ID number
  and social security number shall not be released for public inspection.
  No such records shall be handled at any time by any person other than a
  member of a registration board or board of inspectors of elections or
  board of elections except as provided by rules imposed by the board of
  elections.
    2. The central file registration records shall be kept in locked
  filing cabinets in the office of the board of elections or, in the
  appropriate branch offices of the board of elections. Such records shall
  be taken from such file and handled only where necessary to make entries
  thereon or take other action in connection therewith as required by this
  article. The board of elections may cause to be made, photostatic copy
  or copies of the registration poll records of registered voters in any
  election district and shall cause such photostatic copies to be placed
  in one or more ledgers in the same manner and in the same order as the
  original registration poll records appear in the ledger or ledgers
  containing the registration poll records for such election district.
  Such photostatic records shall be open to public inspection, in lieu of
  the original registration records.
    3. Registration records which have been mutilated or voided or which,
  following the refusal of a board taking registrations to permit an
  applicant to register, have been marked "Refused" shall be retained by
  the board of elections for at least two years. Upon destruction of any
  such records the board shall keep a file of the serial numbers of the
  records so destroyed. Reports of deaths shall be retained by the board
  of elections for two years. In January of each year, the board of
  elections may remove from its files and may destroy the check cards of
  persons whose registrations were cancelled more than two years
  previously.
    4. Subsequent to the expiration of ten years after the receipt thereof
  or, in the case of registration records, subsequent to the expiration of
  two years after cancellation of the registration to which they relate,
  the board of elections, in lieu of preserving any of the records as
  hereinbefore provided, may preserve photostatic, microphotographic or
  photographic film copies thereof, and may destroy the original records
  and is authorized to do so in accordance with the provisions of article
  thirteen of the state finance law. If the board of elections maintains a
  computer readable registration record for each registered voter, which
  includes a copy of the entire registration poll record or application
  for registration of each such voter, the original poll record or
  application for registration may, with the permission of the state board
  of elections, be so destroyed subsequent to the expiration of two years
  after such copy is entered in the computer readable record. If such
  copies in the computer readable record do not include the backs of those
  registration poll records which have been used at one or more elections,
  then all such poll records which have been used at one or more elections
  may, with the permission of the state board of elections, be so
  destroyed subsequent to the expiration of two years after such copy is
  entered in the computer readable record, or subsequent to the expiration
  of four years after the last election at which such poll record was
  used, whichever is later.
    5. Any such photostatic, microphotographic or photographic film copy
  made pursuant to this section or any such computer readable record shall
  be deemed to be an original record for all purposes and, when
  satisfactorily identified, may be introduced in evidence in any judicial
  or administrative proceeding. An enlargement, facsimile or certified
  copy thereof shall, for all purposes, be deemed to be an enlargement,
  facsimile or certified copy of the original record and may likewise be
  introduced in evidence if the film copy or the computer readable record
  is in existence and available for inspection under direction of the
  court or administrative agency. The introduction in evidence of a film
  copy or a copy of a computer readable record, or an enlargement,
  facsimile or certified copy thereof, shall not preclude introduction of
  the original record.
    6. All petitions, certificates, objections or papers filed or
  deposited with a board or officer before an election or primary and
  relating to designations or nominations, and all registers, books,
  statements, returns or papers so filed or deposited after registration,
  enrollment, election or primary at which they were used or to which they
  relate, not including, however, the voted, unused, protested, void or
  wholly blank ballots, shall be preserved by such board or officer for at
  least two years after the receipt thereof and until the determination of
  any action or proceeding touching the same or in which they are ordered
  to be preserved pending the action or proceeding and at the expiration
  of such time they may be either destroyed or sold. Lists of registered
  voters with computer generated facsimile signatures used in lieu of
  registration poll records at any election shall be preserved until the
  end of the fourth calendar year after the year of such election. In all
  jurisdictions, the original statements of results made by the state
  board of canvassers or a county or city board of canvassers and any
  original record specifying the name of a person declared to have been
  elected to a public office shall not be destroyed or sold but shall be
  preserved, as part of the records of such board or officer, until
  otherwise provided by law.
    6-a. During the period prescribed by subdivision six of this section,
  no petition shall be removed from the office of the board of elections
  for copying or any other purpose except while in the custody, or under
  the supervision of a member or employee of such board or pursuant to
  court order.
    7. Upon the sale of any property authorized by this section to be
  destroyed or sold, the proceeds shall be paid over as follows: If sold
  by the board of elections, the proceeds shall be paid into the county
  treasury, or, in the city of New York, into the city treasury. If sold
  by the clerk of a city, town or village, the proceeds shall be paid to
  its fiscal officer for its benefit. Proceeds of the sale of any such
  property in the office of the state board of elections shall be paid
  over as provided by law with respect to other state moneys in the hands
  of a state officer.

 § 3-222. Preservation of ballots and records of voting machines. * 1.
  Except as hereinafter provided, voting machines shall remain locked
  against voting for a period of twenty-three days or until fifteen days
  before the next election, if such machines are needed for use at such
  next election. Provided, however, that a machine may be unlocked if a
  discrepancy discovered in the recanvass of voting machines required by
  this chapter makes it necessary to examine the machine to determine if
  it has malfunctioned and provided further that a machine may be opened
  and all the data and figures therein examined upon the order of any
  court or judge of competent jurisdiction or may be opened by direction
  of a committee of the senate or assembly to investigate and report upon
  contested elections of members of the legislature voted for by the use
  of such machine and such data and such figures examined by such
  committee in the presence of the officer having the custody of such
  machine.
    * NB Effective until December 31, 2007
    * 1. Except as hereinafter provided, voting machines shall remain
  locked against voting for a period of thirty days or until fifteen days
  before the next election, if such machines are needed for use at such
  next election. Provided however that a machine may be unlocked if a
  discrepancy discovered in the recanvass of voting machines required by
  this chapter makes it necessary to examine the machine to determine if
  it has malfunctioned and provided further that a machine may be opened
  and all the data and figures therein examined upon the order of any
  court or judge of competent jurisdiction or may be opened by direction
  of a committee of the senate or assembly to investigate and report upon
  contested elections of members of the legislature voted for by the use
  of such machine and such data and such figures examined by such
  committee in the presence of the officer having the custody of such
  machine.
    * NB Effective December 31, 2007
    2. Write-in ballots shall be preserved for two years after such
  election and the packages thereof may be opened and the contents
  examined only upon order of a court or judge of competent jurisdiction,
  or by direction of such committee of the senate and assembly if the
  ballots relate to the election under investigation by such committee,
  and at the expiration of such time, such ballots may be disposed of at
  the discretion of the officer or board having charge of them.
    3. Except as hereinafter provided, packages of protested, void and
  wholly blank ballots, packages of unused ballots and all absentee and
  military, special federal, special presidential and emergency ballots
  and ballot envelopes, if any, opened or unopened, shall be preserved for
  two years after the election. Except as hereinafter provided, boxes
  containing voted paper ballots shall be preserved inviolate for four
  months after the election, or until one month before the next election
  occurring within five months after a preceding election if such boxes
  are needed for use at such next election and if the officer or board in
  charge of such voted paper ballots is required by law to furnish ballot
  boxes therefor. Provided, however, that such ballot boxes and such
  packages may be opened, and their contents and the absentee and
  military, special federal, special presidential and emergency ballots
  and ballot envelopes may be examined, upon the order of any court or
  justice of competent jurisdiction. Boxes and envelopes containing
  absentee, military and emergency ballots voted at a general or special
  election, for the office of member of the senate or assembly, packages
  of void, protested and wholly blank ballots, unopened absentee and
  military ballot envelopes and the packages of unused ballots, in
  connection with such election, also may be opened, and their contents
  and such envelopes also may be examined, by direction of a committee of
  the senate or assembly to investigate and report on contested elections
  of members of the legislature. Unless otherwise ordered or directed by
  such a court, justice or committee, such boxes shall be opened and their
  contents and such packages and the envelopes containing voted ballots
  and ballot envelopes shall be destroyed, at the expiration of the period
  during which they are required by the provisions of this section to be
  preserved, except that instead of being destroyed, they may be sold and
  the proceeds paid over in the manner provided with respect to the sale
  of books, records and papers pertaining to an election.
    4. The results of the annual test of each voting machine of a type
  approved after September first, nineteen hundred eighty-six, which is
  required by this chapter, shall be preserved for two years.
    5. All records and documents pertaining to ballot label programming
  and ballot label programming data for any election for any voting
  machine of a type approved after September first, nineteen hundred
  eighty-six and all records pertaining to the testing of any such
  programming and programming data or the testing of any such machine in
  connection with any such election shall be preserved for two years after
  such election.

From: Arthur Keller <voting@kellers.org>
Reply-To: Open Voting Consortium discussion list
<ovc-discuss@listman.sonic.net>
Date: Sun, 5 Aug 2007 10:25:53 -0700
To: <dak@khgflaw.com>, Open Voting Consortium discussion list
<ovc-discuss@listman.sonic.net>
Subject: Re: [OVC-discuss] What should be in a good open records law?

Bev Harris has a good list. Here is a summary of conversations I've had
with her by email. I apologize to Bev if I am using her material
inappropriately or incorrectly.

Add consequences like Washington and Colorado.

When getting into specific language, there actually are public records laws
in
various states that can be referred to for specimen language.

While none address the timelines factor, and none address the usability
(data
compilation so it isn't parsed into a million fragments, like some vendors
are
doing), several of the other issues are addressed here and there.
Specifically:

Look to language in the West Virginia public records laws for a nice
preamble
paragraph putting a frame around citizens right to know

Look to language in the Arkansas public records laws for a fascinating
section
that opens up private companies to freedom of information if they receive
public funding (but that should be defined to say if they receive a
significant
portion of their funding from public funds, with a stipulation that this can
apply to a division, if the company is large but has one division doing the
voting stuff.

Look to language in North Carolina and Ohio public records laws for language
that makes it affordable. The key to this is (1) not to allow labor charges
and
(2) actual costs of materials only (in other words, you can't build labor
costs
or surcharges into copy costs.

Look to language in Wisconsin for very good right of access, or right to
observe, for all citizens -- that's in their elections code, not their
public
records code.

Also, to make records affordable, Arkansas and several other states make it
possible to demand electronic form. Arkansas language: A citizen may request
a
copy of a public record in any medium in which the record is readily
available
or in any format to which it is readily convertible with the custodian's
existing software

Specifically for elections, I wrote the following:

  (g) Citizens of California shall have access to other elections
information:
       (1) All information necessary to validate elections must be produced
by the voting system and its accompanying elections procedures;
      (2) When information to validate the election is requested, it must be
provided before recount and contest periods have expired;
      (3) The information must be provided in a usable and cost-effective
manner;
      (4) There will be no restrictions imposed by proprietary claims, nor
shall access to information be exclusively placed outside of governmental
custody.
      (5) Validating information must include proof that hardware and
software certified for use is the same claimed to have been used.
Best regards,
Arthur

At 9:33 AM -0700 8/5/07, Richard C. Johnson wrote:
> Improvement would depend on what features of law now keep the public from
> seeing the GEMS records of elections. Otherwise, a general change may not
> disturb the bureaucrat who now keeps the public at bay.
>
> -- Dick Johnson
>
> Stephanie Frank Singer <sfsinger@campaignscientific.com> wrote:
>> Friends,
>>
>> Here in PA the legislature is in the process of improving our open records
>> law. This law will not address elections in particular, but its general
>> language about open records will affect our ability to get information about
>> the conduct of elections, particularly elections conducted on paperless
>> DRE's.
>>
>> Can anyone suggest language that would ensure (without specifically
>> mentioning elections) that we can get Diebold GEMS records and other useful
>> computer-generated traces of election conduct?
>>
>> Thanks!
>> Stephanie Singer
>>
>>
>>
>> Stephanie Frank Singer, Ph.D.
>> Campaign Scientific
>> 215-715-3479
>> http://www.campaignscientific.com

-- 
----------------------------------------------------------------------------
---
Arthur M. Keller, Ph.D., 3881 Corina Way, Palo Alto, CA 94303-4507
tel +1(650)424-0202, fax +1(650)424-0424
_______________________________________________
OVC-discuss mailing list
OVC-discuss@listman.sonic.net
http://lists.sonic.net/mailman/listinfo/ovc-discuss
By sending email to the OVC-discuss  list, you thereby agree to release the
content of your posts to the Public Domain--with the exception of
copyrighted material quoted according to fair use, including publicly
archiving at  http://gnosis.python-hosting.com/voting-project/

_______________________________________________
OVC-discuss mailing list
OVC-discuss@listman.sonic.net
http://lists.sonic.net/mailman/listinfo/ovc-discuss
By sending email to the OVC-discuss list, you thereby agree to release the content of your posts to the Public Domain--with the exception of copyrighted material quoted according to fair use, including publicly archiving at http://gnosis.python-hosting.com/voting-project/

==================================================================
= The content of this message, with the exception of any external
= quotations under fair use, are released to the Public Domain
==================================================================
Received on Fri Aug 31 23:17:04 2007

This archive was generated by hypermail 2.1.8 : Fri Aug 31 2007 - 23:17:07 CDT