Monday, November 17, 2014

Public Access Counselor Advisory Opinion Says Voter Registration Records And Voting History Are Public Records

Recently, I made a simple request of the Marion Co. Board of Voter Registration ("BVR") to obtain the voter registration and voting history of a specific individual identified as a potential candidate for Indianapolis mayor in next year's municipal election. Voter registration and voting history records of individual voters have, after all, always been treated as public records. To my surprise, the BVR denied my initial request. A letter dated October 1, 2014 signed by LaDonna Freeman and Cindy Mowery, the Democratic and Republican co-directors of the Board of Voter Registration, stated:
"Pursuant to the policy adopted by the Marion County Board of Election we are not permitted to release this information," the letter read. "Voting history is prohibited from disclosure by the Board of Voter Registration."
Upon further inquiry, I obtained a copy of the policy referenced in the letter. The policy pertained to requests for electronic lists of registered voters in Marion County, which was adopted by the Marion Co. Board of Elections on April 20, 2012. That policy (Resolution 05-12) on its faced applied to compiled electronic voting record lists and was "not intended to address other public records requests addressed to the Marion County Board of Voter Registration under I.C. 5-14-3-1 et. seq." The state law upon which the local board's policy was based (I.C. 3-7-27-6(c)) applied only to restrictions on records obtained from the computerized compilation of statewide registered voters.

After I wrote back to the BVR clarifying my request for the sole record of an individual voter and that voter's voting history, citing the applicable law, the Corporation Counsel's office responded by providing only a partial record of the individual's voter registration record. An October 8, 2014 letter from Joseph Smith in the Corporation Counsel's office stated that "voter registration records are maintained electronically in the Statewide Voter Registration System ("SVRS")." He continued, "Neither MCBVR nor the Marion County Election Board has possession or custody of these records, however MCBVR does have access to them through SVRS."

While acknowledging the information I sought may have been provided prior to the adoption of the Board's April 20, 2012 policy, Smith insisted BVR is "limited in what voter registration information it is able to disseminate to the public." Under Smith's interpretation of the Board's policy, the public would be denied access to an individual registered voter's date of birth, gender, telephone number, voting history, the date of their voter registration, as well as their social security number and voter identification number or other unique field used by the BVR to identify a voter. Under a separate state law, the social security number is automatically made confidential. In addition, public records requests made of a person under a court-ordered protective order can also be shielded from disclosure. With respect to my request, the BVR produced only a redacted copy of the voter's registration card (VRG-7), which blacked out the person's gender, date of birth, telephone number, social security number and date of registration.

On October 16, 2014,  I filed a complaint with the Office of Public Counselor. The BVR refused an opportunity afforded to it by the Public Access Counselor to respond to my complaint. Today, Public Access Counselor Luke Britt responded to my request by concluding the BVR had "misapplied the resolution passed by the Marion County Election Board and Resolution 05-12 should not be considered to prohibit the release of individual records." Britt offered the following analysis in support of his conclusion:
The public policy of the APRA states that "a (p)roviding person with 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." See Ind. Code § 5-14-3-1. The Marion County Board of Voter Registration is a public agency for the purposes of the APRA. See Ind. Code § 5-14-3-2(n)(1). Accordingly, any person has the right to inspect and copy the Board’s public records during regular business hours unless the records are protected from disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14- 3-3(a).
The Board has not alleged that any record you seek is confidential, but rather the resolution passed by the Marion County Election Board ("MCEB") prohibits the Board of Voter Registration from releasing the record pertaining to the individual. I agree with your interpretation of the law and find the Marion County Board of Voter Registration is misapplying the policy in regard to your request. 
The statute allowing the MCEB to pass the resolution (Ind. Code § 3-7-27-6(c)) strictly applies to lists of names and addresses (See Ind. Code § 5-14-3-3(f)). You did not seek a list but rather an individual record. The Board has not stated any authority declaring an individual’s voter registration record or voting history to be confidential.
If the Board maintains a copy of the record you seek (and apparently it does based upon the representations at the end of their letter dated October 8, 2014), then it must release the information to you upon request.
The position taken by the BVR with respect to public records requests of individual voters would have severely impeded the ability of members of the general public to gain access to the very same information that is freely shared with the political parties in bulk, which in turn upload the information into party-maintained computer databases used by party officials for political purposes. The adoption of Resolution 05-12 was an effort to thwart attempts made by non-slated judicial candidates to obtain access to the same computerized voter registration records and information that is provided to the political parties. For whatever reason, the BVR is seeking an even broader interpretation of the law to prevent people other than political insiders from researching information about an individual's voter registration and voting history. The media should be deeply concerned about that interpretation, although I won't hold my breath waiting for any of them to express outrage.

You can view the Public Access Counselor's opinion by clicking here.


Paul K. Ogden said...

Great job, Gary. Congratulations. Now let's see if they follow the law.

Leslie Barnes said...


Can you send a copy of the PAC's opinion to my work address at the Indiana Election Division, ?

I've looked online for the opinion to no avail. Perhaps it takes a while to update the agency's website.

Thank you for your help. Leslie Barnes

Gary R. Welsh said...

Thanks, Paul. Leslie, I've added a link to the decision.

Anonymous said...

Since Ballard has been mayor, it's my impression the newer attorneys hired to work for city legal have become much more partisan and not so much concerned about the law.

Zachary Mulholland said...

Nice work. The MCBVR is a window into everything that is wrong with the system and demonstrates how insiders muck up the gears of government to maintain control over the process.