Public Access to Election Records Heather Willis Neal Public Access Counselor Circuit Court Clerks’ Conference Circuit Court Clerks’ Conference June 10, 2008

2 Access to Public Records Act Basics “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” The full text of APRA can be found at I.C The full text of APRA can be found at I.C

3 Access to Public Records Act Basics “Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.” “Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.” The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency. The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency.

4 Access to Public Records Act Basics “Copy” includes photocopying as well as making a digital copy using a digital camera or a hand-held scanner. “Copy” includes photocopying as well as making a digital copy using a digital camera or a hand-held scanner. “Inspect” includes the right to make notes, abstracts and memoranda, or to listen to an audiotape. “Inspect” includes the right to make notes, abstracts and memoranda, or to listen to an audiotape.

5 Access to Public Records Act Basics The agency may require a person to submit a request for a public record in writing, on or in a form supplied by the agency. The agency may require a person to submit a request for a public record in writing, on or in a form supplied by the agency. –Example: VRG-24 to request voter registration list The agency shall either make the requested copy or allow the person to make a copy on the agency’s equipment or on the person’s own equipment. The agency shall either make the requested copy or allow the person to make a copy on the agency’s equipment or on the person’s own equipment.

6 Access to Public Records Act Basics An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system. An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system. If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available. If a record contains disclosable and nondisclosable information, the agency shall separate the disclosable material and make it available. –Example: SSN on a voter registration record

7 Access to Public Records Act Basics Public Agency’s Responsibility Public Agency’s Responsibility –Respond to requests made in person or over telephone within 24 hours of receipt. –Respond to mailed, faxed, or ed requests within 7 calendar days of receipt. –Respond in writing to written requests for records; best practice is to respond to all requests in writing. –Responding is not necessarily producing the record – no deadlines for production.

8 Access to Public Records Act Basics Agency’s Responsibility, continued Agency’s Responsibility, continued –If denying records in response to a written request, state reason for denial with citation to authority, and give name and title or position of person responsible for denial. –Produce records in reasonable time; communication with person requesting is key.

9 Access to Public Records Act Basics Exemptions to disclosure I.C. § Exemptions to disclosure I.C. § –Section 4(a) categories are confidential –Declared confidential by state statute –Required to be kept confidential by federal law –Declared confidential by rule adopted by Indiana supreme court (Administrative Rule 9) –Social security number contained in the records of a public agency

10 Access to Public Records Act Basics Exemptions to disclosure I.C. § Exemptions to disclosure I.C. § –Section 4(b) are discretionary categories –Attorney work product –Personnel file information, except for information that must be disclosed –Inter or intra-agency deliberative material, which is expression of opinion and is communicated for the purpose of decision making

11 Access to Public Records Act Basics Fees Fees –Local agencies may charge only the fee schedule adopted by the fiscal body of the agency. –May not exceed the actual cost for providing a copy of the public record. –Actual cost is the cost of the paper and per page cost for use of the equipment.

12 Access to Public Records Act Basics Fees, continued Fees, continued –APRA’s general provisions on fees are superseded by a specific statute allowing higher fee. –Clerks have specific statute allowing a higher fee: I.C. § –Agencies may require advance payment.

13 Access to Election Records Voter registration records Voter registration records –Generally, voter registration affidavits or forms must be available at reasonable times for public inspection, transcription, and copying. I.C. § –Exceptions to public inspection and copying of voter registration records:  Records concerning declinations to register to vote  Records that indicate the identity of a voter registration agency where a person registered  Registration records of participants in the attorney general’s confidentiality program for abused persons

14 Access to Election Records Voter registration records Voter registration records –The county election board shall adopt a policy with regard to electronic voter registration information. The policy must either permit a person to obtain a copy of the electronic voter registration information or not permit a person to obtain a copy of the information. I.C. § (c). –The person may not use the information to solicit merchandise, goods, services, or subscriptions or sell, loan, give away, or otherwise deliver the information to any other person for a purpose other than political activities or political fundraising activities. State Form VRG-24 must be used.

15 Access to Election Records Election materials Election materials –The general rule for retention of election materials is that they must be retained for 22 months from the date of the election. I.C. § (c). Any record concerning an issue in litigation must be retained until the controversy is resolved, subject to court orders.

16 Access to Election Records Election materials Election materials –The general rule for election materials is that they are available for public inspection and copying after the period for filing and recount and contest has expired. I.C. § (c). –This includes poll lists, applications for absentee ballots, ballot envelopes, tally sheets, and the computer programs used to tabulate votes.

17 Access to Election Records Election materials Election materials –Exceptions to public inspection and copying  Unused ballots may be disposed of after the time for filing a petition for recount or contest has expired. I.C. §  Affidavits challenging voter as an illegal voter must be opened and copied. I.C. §  If an order is issued under I.C. § , I.C. § , or 42 U.S.C. 1973, continued preservation of the confidentiality of the records is required.

18 Access to Election Records Election materials Election materials –Exceptions to public inspection and copying  If a petition for a recount or contest is filed, the election material remains confidential until completion of the recount or contest. I.C. § (d).  Ballots remain confidential even after the period for filing a petition for recount or contest has expired. I.C. § (c).

19 Access to Election Records Absentee ballot election materials Absentee ballot election materials –If a county voter registration office determines that the inspection and copying of precinct election material would reveal the political parties, candidates, and public questions for which an individual cast an absentee ballot, the county voter registration office shall keep confidential only the part of the election material necessary to protect the secrecy of the voter’s ballot. I.C. § (f).

20 Access to Election Records Poll lists Poll lists –Upon delivery of the poll lists, the voter registration office may unseal the envelopes containing the poll lists for the purposes of cancellation, transfer, name change, or addition of a registration. Upon completion of inspection, the poll list shall be preserved with the ballots and other election materials. I.C. § (e).

21 Access to Public Records Act Basics Retention of records Retention of records –The APRA requires an agency to protect records from loss, alteration, mutilation, or destruction. –Each county should have a commission on public records to adopt retention schedules. The state oversight committee on public records has set general retention schedules for cities and towns which can be found at

22 Access to Public Records Act Enforcement Provisions A person may file a complaint with the public access counselor alleging a denial of a right under APRA. The PAC sends formal complaint to the agency for response and issues a formal advisory opinion within 30 days. A person may file a complaint with the public access counselor alleging a denial of a right under APRA. The PAC sends formal complaint to the agency for response and issues a formal advisory opinion within 30 days. A person may file a lawsuit in superior court to compel the agency to produce a record. A person may file a lawsuit in superior court to compel the agency to produce a record.

23 Office of the Public Access Counselor Our contact information Our contact information –402 West Washington Street, W460 Indianapolis –Fax: –Toll free: –Phone: Visit our website at for the Public Access Handbook (updated in 2008), advisory opinions and other reference materials Visit our website at for the Public Access Handbook (updated in 2008), advisory opinions and other reference materials