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Election Defense Alliance Open Records Request for Spring Election Materials

Posted in
High Priority
May 11, 2011
Wisconsin County Clerks
Wisconsin Municipal Clerks
City of Milwaukee Election Commission
Milwaukee County Election Commission
Ross Hein, Elections Specialist
WIDOJ Views on Election Defense Alliance Records Request.pdf385.9 KB

We have received several requests for guidance regarding recent open records requests for the contents of removable memory devices for the voting systems used in the past Spring Election.  Additionally, the open records request includes election materials from the Spring Election.  It is our understanding that the guidance sought includes specifics on how to treat the requests, what to produce, and the mechanics of production.  Unfortunately, such guidance really is legal advice regarding the application of Wisconsin’s open records law found in Chapter 19, Wis. Stats.  Please note that the open records law is not within the jurisdiction of the G.A.B. and, therefore, we cannot provide legal advice regarding the application of those statutes.  However, in an effort to provide some helpful information, we can provide the following for your consideration.  If your counsel requires legal advice, your counsel may wish to contact the Wisconsin Attorney General’s Office as they have authority to interpret and provide opinions regarding the open records law.

The recent request for the contents of the removable memory devices for the voting systems used in the past Spring Election will require further investigation in consultation with the voting equipment manufacturer and/or programmer, as well as your attorney.  Your attorney can advise you on how to proceed with respect to preservation of any records subject to an open record request immediately prior to a statutorily approved disposal date.  In order to make sure that all requested records that statutorily must be disclosed are in fact available to public inspection, clerks should request the position of the voting equipment manufacturer and/or programmer to prevent violations of trade secret, copyright, trademark, proprietary and general confidentiality rights of the manufacturer and/or programmer.  

Most importantly, clerks should seek consultation with their respective municipal or corporation counsel regarding the implications of the statewide recount, pending recount litigation, and trade secret proprietary interests of manufacturers/programmers of voting systems, as they relate to open record provisions and specific open records requests.  If your municipal or corporation counsel has questions regarding the state wide recount, pending recount litigation, trade secret and open records provisions, they may contact G.A.B. Staff Counsel, Shane Falk at (608) 266-2094.  In Attorney Falk’s absence, please contact Staff Counsel, Michael Hass, at (608) 266-0136.

Lastly, please see the attached document from the Wisconsin Department of Justice which provides its views about public records law pursuant to § 19.39, Wis. Stats. The WI Department of Justice has stated: 

A municipal or county clerk reasonably could determine that the public interests in satisfying those statutory preservation requirements by retaining the requested election records intact as they currently are secured by the county clerks outweighs any public interest in disclosure at this time, and therefore deny the pending Election Defense Alliance public records requests on that basis.     

The attached document from the Wisconsin Department of Justice could be used by your counsel as a factor in weighing your ability to respond to the open records requests for the Spring 2011 election materials.

If you have any further questions regarding these recommendations by the G.A.B., you may contact Elections Specialist, Ross Hein at (608) 267-3666.

Thank you.