DE 23-IB15 2023-05-18

Can a Delaware voter use FOIA to get poll book certification forms and voting machine certificates after an election?

Short answer: No. The AG ruled poll book certifications and voting machine certificates are 'voting materials' that 15 Del. C. § 4980 requires to be stored undisturbed and locked for 22 months after the election, which makes them exempt from FOIA under § 10002(o)(6).

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

23-IB15 05/18/2023 FOIA Opinion Letter to Susan Dixon re: FOIA Complaint Concerning the Delaware Department of Elections

Plain-English summary

The petitioner asked the Delaware Department of Elections for three categories of records from each Election District in New Castle County: Election Day Issues Logs, Poll Book Certification Forms (opening and closing), and Voting Machine Certificates (opening and closing). The Department produced the issues logs but denied access to the certifications and certificates, calling them "voting materials" under 15 Del. C. § 4980(b) and therefore exempt from FOIA via § 10002(o)(6).

The petitioner argued that the term "voting materials" is not defined and that the certificates do not fit because they are not ballots or media-extracted records, that the relevant Code sections had been repealed, and that public-availability policy supported disclosure. The AG sided with the Department. Section 4980(a) describes voting materials as "including the voting devices, media containing the election results, and secured containers of voted paper ballots," but the Delaware Supreme Court has read "including" as a term of enlargement, not limitation. The poll book certifications and voting machine certificates fit a plain-meaning reading of "voting materials." The Delaware Constitution and 15 Del. C. § 5701(a) also reference "voting machine certificates" as records the Boards of Canvass review. Once the canvass is complete, those materials must be stored "undisturbed and locked for 22 months after the day of the election," with limited exceptions for the General Assembly, the Attorney General, and the Department for audit purposes. FOIA requesters are not on that list. So the records are statutorily exempt.

What this means for you

If you are a Delaware voter or candidate trying to get election records

Some election records are public, others are not. Issues logs are public. Voted paper ballots, voting machine certificates, and poll book certifications are not, until the 22-month statutory hold is over. Three practical points:

The 22-month hold runs from the day of the election. After it expires, the access analysis may change, though the records may then have been moved to long-term storage or archives.
The audit access channel under 15 Del. C. § 5012A goes through the General Assembly, the AG, or the Department itself. A private citizen cannot trigger an audit. If you have specific concerns about an election, the route is through your legislator or the AG's office.
The Department posts election-day issues logs and post-election audit reports on its website. Those are usually a faster path to whatever public-domain records exist.

If you are a journalist covering Delaware elections

Build your records strategy around this division. The Department's open material (issues logs, audit reports) is fast. The locked-down material (ballots, machine media, poll book and machine certifications) is statutorily off-limits even if you can show a public interest. Focus document requests on what is reachable and report the unavailability of the rest as a structural fact about Delaware election law.

If you are running for office and want to inspect close-race records

The opinion notes that the Delaware statutory framework allows candidates and accredited challengers to observe vote counting and canvassing in person, but that observation right is exercised before the canvass certification triggers § 4980's hold. Once the canvass is complete, your inspection rights through observation are over. To challenge a result, the venue is a court election contest, not a FOIA petition.

If you are an election official answering FOIA requests

Use this opinion as the controlling framework. Cite § 4980 and § 10002(o)(6) explicitly. Submit a sworn affidavit (the State Election Commissioner did so here) confirming that the requested items are voting materials and have been "undisturbed and locked" since the canvass. Note the statutory exceptions for audit access and explain that FOIA is not one of them.

Common questions

Why does Delaware lock voting materials for 22 months?

Section 4980 expressly says voting materials must be stored "undisturbed and locked" for 22 months after the day of the election, with limited audit access for the General Assembly, AG, and Department. The 22-month period is intentional: it gives auditors and election contests a window to access the records under controlled circumstances, while protecting their integrity from interference or premature release.

Are poll book certifications really "voting materials"?

The AG said yes, applying ordinary statutory interpretation. The statute lists examples of voting materials introduced by the word "including," which Delaware courts read as expanding the category, not limiting it. Poll book certifications are "records in the voting process" by any plain reading. The Delaware Constitution and 15 Del. C. § 5701(a) also explicitly reference "voting machine certificates" as items the Boards of Canvass review.

What about audits I see published online?

Those are post-election audits performed by the Department under § 5012A. They use the locked voting materials but are produced by authorized officials, not by FOIA requesters. The audit reports themselves are public; the underlying voting materials they were built from are not.

Can I see the records after the 22 months expires?

The statute itself does not block access after 22 months, but other rules (records management, archives, retention, ongoing protective measures) may apply. After expiration, your best move is to ask the Department what the post-22-month status of the specific records is.

What about destroying voting machine certificates? Should they be saved?

That is a retention question, not a FOIA question. Records management for voting materials is governed by § 4980, the Department's policies, and Public Archives schedules. The AG's office cannot police retention through a FOIA petition.

Background and statutory framework

The petitioner submitted a December 1, 2022 FOIA request to the Department of Elections for three categories of records from each Election District in New Castle County: Election Day Issues Logs, Poll Book Certification Forms (opening and closing), and Voting Machine Certificates (opening and closing). The Department took additional time and on February 28, 2023 produced the issues logs but denied the certifications and certificates as "voting materials" under 15 Del. C. § 4980(b), which the Department invoked through 29 Del. C. § 10002(o)(6).

Section 10002(o)(6) excludes from "public record" any "records specifically exempted from public disclosure by statute or common law." Section 4980 sits in Title 15 (Elections). It directs that immediately after an election all voting materials, "including the voting devices, media containing the election results, and secured containers of voted paper ballots," must be stored in a safe and secure place provided by the Department. After the canvass, the materials are returned to the Department and "the voted paper ballots and all documentation extracted from the media containing the election results [must be left] undisturbed and locked for 22 months after the day of the election." The only access during that period is for an "authorized member or agent of the General Assembly, the Attorney General, or the Department for the purpose of conducting an audit under § 5012A."

The AG read "voting materials" by its plain meaning, citing Progressive Northern Ins. Co. v. Mohr, 47 A.3d 492 (Del. 2012) on statutory construction, and Arwood v. AW Site Services, LLC, 2022 WL 973441 (Del. Ch. Mar. 31, 2022) on "including" as enlargement. The Delaware Constitution (art. V, § 6) and 15 Del. C. § 5701(a) both reference "voting machine certificates" as materials the Boards of Canvass review. The State Election Commissioner provided a sworn affidavit confirming the requested records were voting materials stored under § 4980 since November 14, 2022.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10002(o)(6) (records exempted by statute or common law)
29 Del. C. § 10003(a) (public access)
29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
15 Del. C. § 4980 / § 4980(a) / § 4980(b) (storage of voting materials)
15 Del. C. § 5701(a) (canvass and voting machine certificates)
Del. Const. art. V, § 6
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Progressive Northern Ins. Co. v. Mohr, 47 A.3d 492 (Del. 2012)
Arwood v. AW Site Services, LLC, 2022 WL 973441 (Del. Ch. Mar. 31, 2022)

Source

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB15
May 18, 2023
VIA EMAIL
Susan Dixon
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Elections

Dear Ms. Dixon:
We write regarding your correspondence alleging that the Delaware Department of Elections violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that the Department did not violate FOIA by denying access to the records you requested.

BACKGROUND

On December 1, 2022, you sought three items from the Delaware Department of Elections: "all Election Day Issues Logs for each Election District in New Castle County; all Poll Book Certification Forms for both Opening and Closing the Poll Books for each Election District in New Castle County; and all Voting Machine Certificates for Opening and Closing the Voting Machines for each Election District in New [Castle] County."[1] After advising of the need for additional time to process this request, the Department replied on February 28, 2023, providing issues logs in response to the first item, and denying access to the two remaining items, as they are considered "voting materials" under 15 Del. C. § 4980(b) and therefore exempt from disclosure under 29 Del. C. § 10002(o)(6). This Petition followed.

The Petition alleges that the Department improperly denied access to these two items. You argue that the Department did not assert that the documents are exempt from FOIA under 29 Del. C. § 10002. In addition, you contend that the Department's reliance on 15 Del. C. § 4980(b) is misplaced. In your opinion, the certificates do not fall within 15 Del. C. § 4980 or the definition of "voting materials," as they are not ballots or documentation extracted from media, and the sections of the Code referring to voting certificates have been repealed. You argue that the term "voting materials" is not statutorily defined, and you believe this does not include the certificates you requested. You claim the Department's denial conflicts with the public policy to make information about the electronic voting systems publicly available. As the Department has been working on this request for three months, you believe that the requested information should be provided to you.

The Department's counsel responded to the Petition on the Department's behalf ("Response") and included an affidavit from the State Election Commissioner. The Department explains that the Board of Canvass in each county, on the second day after the general election, convenes to canvass the vote and report the election results. Those voting materials are collected by the Department and stored, under guard, at the Department's warehouse facilities and at the courthouse. The Department, upon closing of the polls, delivers and turns over the voting materials to the respective county Prothonotary for the duration of the canvass. During the canvass, if any materials must be accessed from the warehouse, the Board of Canvass must issue an order to access the records and deliver them to the courthouse. Once the canvass is complete, Section 4980 requires the Prothonotary in each county to return all voting materials to the Department to be secured "undisturbed and locked for 22 months after the day of the election."[2] Both the Delaware Constitution and Delaware Code reference "voting machine certificates" in their descriptions of the records to be reviewed by the Board of Canvass.

Although voting materials are not defined in the Code, the Department asserts that these poll book certifications and voting machine certificates you request are voting materials, and as they are precluded from disclosure by Section 4980, the records are exempt from FOIA under 29 Del. C. § 10002(o)(6). Even though Section 4980(a) includes a description of some voting materials, the list in this definition is preceded by the word "including," which indicates the list is not exhaustive. The Department also points out that Section 5008A pertains to certification processes that occur prior to an election, as opposed to the certifications you seek that are completed at the polling places on the day of the election and are used by the Board of Canvass after the election when certifying the materials. For the 2022 general election, the Election Commissioner attests that "those specific records [you requested] were included in the voting materials provided by the Department to the New Castle County Board of Canvass . . . immediately following the 2022 General Election, and have been stored 'undisturbed and locked' and under seal by the Department since November 14, 2022, when all of the voting materials were returned to the Department by the Board of Canvass following its canvassing (certification) process, as required by Section 4980."[3]

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for copying of public records.[4] In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.[5] In certain circumstances, a sworn affidavit may be required to meet that burden.[6]

Under FOIA, "records specifically exempted from public disclosure by statute or common law" are excluded from the definition of "public record."[7] In other words, when another statute outside of FOIA exempts a record from public disclosure, that record is also exempt from disclosure under FOIA pursuant to 29 Del. C. § 10002(o)(6). In this case, the Department explains that 15 Del. C. § 4980 prohibits the disclosure of the records you have requested, as they are voting materials. Section 4980 states that "[i]mmediately after the election, and within the 2 days immediately following the day of election, all voting materials, including the voting devices, media containing the election results, and secured containers of voted paper ballots, must be stored in a safe and secure place provided by the Department."[8] While this term is not defined in the statute, a plain reading of the term "voting materials" broadly refers to records in the voting process, which include the poll book certification forms and voting machine certificates you have requested.[9] Section 4980's use of the term "including" indicates that the list of examples following "voting materials" is not exhaustive.[10] In addition, we note that the voting machine certificates are expressly cited as part of the materials the Boards of Canvass must review.[11]

The Election Commissioner attests that the records you seek have been "'undisturbed and locked' and under seal" since November 14, 2022 when the Board returned those materials after completing its canvassing process under Section 4980.[12] These items are only accessible as provided in Section 4980, which does not include inspection by the public pursuant to the FOIA request process.[13]

CONCLUSION

For the foregoing reasons, we determine that the Department did not violate FOIA by denying access to the requested records.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Response, p. 4.
[3] Id., Ex. 2.
[4] 29 Del. C. § 10003(a).
[5] 29 Del. C. § 10005(c).
[6] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[7] 29 Del. C. § 10002(o)(6).
[8] 15 Del. C. § 4980(a) (emphasis added).
[9] Progressive Northern Ins. Co. v. Mohr, 47 A.3d 492, 495-96 (Del. 2012).
[10] Arwood v. AW Site Services, LLC, 2022 WL 973441, at *2 (Del. Ch. Mar. 31, 2022).
[11] Del. Const. art. V, § 6; 15 Del. C. § 5701(a).
[12] Response, Ex. 2.
[13] 15 Del. C. § 4980(b).