Saturday, March 14, 2015

Public Access Counselor Contradicts Itself, Permits Marion County To Withhold Voting History Information

The Marion County Board of Voter Registrations is the only county that we know of in the state of Indiana which blatantly flaunts public accessibility to voter registration and voter history information. The BVR illegally redacted information on the voter's registration form, and it refused to provide me the voter's voting history, relying on a policy adopted by the Marion Co. Board of Elections, the sole purpose of which was to make it impossible for candidates who run against the party's slated candidates to obtain lists of registered voters, along with their voting history, in electronic format. That information is delivered in bulk to the political parties and made widely available to party operatives and political consultants for use in campaigns.

In an opinion last year, the state's Public Access Counselor sided with me in determining that voter registration and voting history I requested on an individual voter was a public record subject to disclosure, notwithstanding the Board of Elections policy. Specifically, the Public Access Counselor wrote:
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. (emphasis added) 
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.
After that ruling, the BVR produced to me the voting registration information without impermissible redactions for IMPD Chief Rick Hite. The BVR confirmed to me there was no voting history for Hite to produce because he had never cast a ballot in any election in Marion County after registering to vote. In a disturbing opinion, the Public Access Counselor has contradicted its November 14, 2014 opinion (14-FC-247) in a newly-released opinion (15-FC-38) based on an identical complaint I filed against the BVR when it refused to release the voter history of two voters seeking election to public office.
I opined in 14-C-247 (sic) that Ind. Code § 3-7-27-6(c) allows the policy to cover lists of names and addresses and individual voter registration records were public record. After reviewing the law yet again, I see no reason to depart from my analysis.
Voter history, however, is a different animal. Ind. Code § 3-27-26.4-8 excludes from disclosable information, among other things, voting history on an individual , in effect, rendering the voting history confidential. While that particular statute applies exclusively to the Indiana Election Division, the APRA states what is confidential to one public agency is confidential to any other agency receiving that information . . . Therefore, voting history is nondisclosable.
This is the most absurd public records request opinion I've ever read. I clearly pointed out to the Public Access Counselor the fact that voting history is shared in bulk to the political parties, the four legislative leaders and even the media can obtain the same information in bulk if it so desires. The political parties upload the bulk electronic data they receive into proprietary databases accessible to thousands of party leaders, party workers and political operatives for use in political campaigns.

If a registered voter casts his or her ballots by absentee ballot instead of voting in-person, the Marion Co. Board of Elections will produce upon request a copy of that person's absentee ballot application. The BVR denied me the voting history for GOP mayoral candidate Chuck Brewer, but the Board of Elections produced to me two absentee ballot applications he completed for the 2014 primary and general elections, which is part of his voting history. Similarly, if you have a the name, date of birth and county of registration for a specific voter, anyone can look up that person's voting registration information on the Statewide Voter Registration System database and learn what, if any, past elections that voter has cast an absentee ballot.

What the Public Access Counselor is saying is that voting history is only confidential with respect to average citizens in some circumstances--namely, when the corrupt party leaders don't want the public to have access to that information. If a private citizens wants to challenge a person's qualification for office based on residency or some other reason, the political appointees of the BVR want to play hide the ball with public information to prevent the challenger from meeting his or her burden of proof in challenging a person's candidacy. The party elites are super citizens who have access to voter history information for their own self-serving purposes the Public Access Counselor claims is confidential to ordinary citizens like me to use against people it wants to bar from participation in the political process. You cannot under any interpretation of law claim a record is confidential if you disclose it in bulk to some citizens. I can drive up to Hamilton County or any other county in the state and obtain the information I requested from Marion County, but there is a different set of rules that apply only to Marion County that block the public from getting information that is clearly a public record. And then they wonder why people have so much distrust and disdain for their government. 


Anonymous said...

This is nuts. I have a friend who is a county chairman. I sat next to him one day when he accessed the party's database to look up people's voting history to see whether they voted and if they did which primary they voted in just for curiosity sake. Does that mean we were breaking the law if the information is supposed to be confidential?

Gary R. Welsh said...

No, you weren't breaking any laws. Each party has rules that apply to the use of the data uploaded into their proprietary databases. Each party has its own rules for the searching and use of data in their proprietary databases. Those who fail to comply with those rules can have their privileges to access the information suspended.

Gary R. Welsh said...

Does this mean attorney Greg Purvis was given illegal access to confidential voting history information on Charlie White in 2010? No. Hamilton County simply follows long-standing state law making the voting history of voters public record.

Greg Bowes said...

The PAC decision seems to conflict with Evansville Courier & Press v. Vanderburgh County Health Dep’t, 17 N.E.3d 922, 930 (Ind. 2014), available at, which explained how the legislature probably had good reason for making something confidential from one agency while leaving it accessible if obtained from another agency.

Gary R. Welsh said...

And that was exactly the legislature's intent, Greg. What they did not what to see happen was for bulk data used for SVRS to be made available as a public record and exploited for commercial purposes. As you and I know, however, that is happening anyway because of misuse by those for whom the data has been made available in bulk.

Anonymous said...

Can't the people file a lawsuit to obtain this information? What would that cost?

Eric Morris said...

Good and/or limited government is an impossible myth. This is why I am an informed non-voting Anarcho-capitalist.

Pete Boggs said...

Runaway / AWOL / deserter government is, anarchy.