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

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do not fit because they are not ballots or media-extracted records, that the relevant Code sections had been repealed, and that public-availability policy supported disclosure.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," and the opinion states they "are only accessible as provided in Section 4980, which does not include inspection by the public pursuant to the FOIA request process." So the records are statutorily exempt.

What this means for you

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

The opinion holds that poll book certification forms and voting machine certificates are "voting materials" under 15 Del. C. § 4980, which § 10002(o)(6) makes exempt from FOIA. By contrast, the Department produced the Election Day Issues Logs the petitioner also requested, so not every election record is locked down. The opinion states the voting materials are "only accessible as provided in Section 4980, which does not include inspection by the public pursuant to the FOIA request process," and that they must be kept "undisturbed and locked for 22 months after the day of the election."

How the AG read "voting materials"

The opinion notes the term is not defined in the statute, and reads it by "a plain reading" to "broadly refer[] to records in the voting process," which "include the poll book certification forms and voting machine certificates." It relies on § 4980(a)'s use of the word "including" to show the listed examples (voting devices, media containing election results, secured containers of voted paper ballots) are "not exhaustive," and notes that voting machine certificates are "expressly cited as part of the materials the Boards of Canvass must review" under the Delaware Constitution and 15 Del. C. § 5701(a).

If you are an election official answering similar FOIA requests

The opinion turns on a sworn affidavit: the State Election Commissioner attested that the specific requested records were among the voting materials returned to the Department by the New Castle County Board of Canvass and "have been stored 'undisturbed and locked' and under seal by the Department since November 14, 2022." That sworn factual basis is what tied the records to § 4980's protection.

Common questions

What did the petitioner argue?

The petitioner argued the term "voting materials" is not defined, that the certificates are "not ballots or documentation extracted from media" and so do not fall within § 4980, that the relevant Code sections had been repealed, and that the denial conflicted with the policy of making information about electronic voting systems publicly available. The opinion rejected these, reading "voting materials" broadly and finding the certificates within it.

Are poll book certifications really "voting materials"?

The opinion says yes, applying a plain reading of the statute. It relies on § 4980(a)'s word "including" to treat the listed examples as non-exhaustive, and notes that voting machine certificates are expressly referenced as materials the Boards of Canvass review under the Delaware Constitution and 15 Del. C. § 5701(a).

Did the three-month delay in responding matter?

The petitioner pointed to the time the Department took (the request was December 1, 2022 and the Department replied February 28, 2023). The opinion did not find a violation; it resolved the petition on the statutory exemption, holding the Department did not violate FOIA by denying access to the two categories of voting materials.

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). The opinion quotes its direction 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, and that after the canvass the materials are kept "undisturbed and locked for 22 months after the day of the election." The opinion states those materials "are only accessible as provided in Section 4980, which does not include inspection by the public pursuant to the FOIA request process."

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

• Landing page: https://attorneygeneral.delaware.gov/2023/05/18/23-ib15-05-18-2023-foia-opinion-letter-to-susan-dixon-re-foia-complaint-concerning-the-delaware-department-of-elections/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/05/Attorney-General-Opinion-No.-23-IB15.pdf

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).