CLERK AND RECORDER POLICY FOR OPEN RECORDS REQUESTS RECEIVED IN PROXIMITY TO ELECTIONS LEAD DEPARTMENT EFFECTIVE DATE October 22, 2012 APPROVED BY MOST RECENT CHANGES: n/a County Attorney s Office; Clerk and Recorder Teak J. Simonton, Clerk and Recorder I. SUMMARY/PURPOSE It is the policy of the Eagle County Clerk and Recorder s Office ( Clerk and Recorder ) that all public records shall be open to inspection by any person at reasonable times, except as provided by the Colorado Public Records Act (the Act ), or as otherwise specifically provided by law. The Act authorizes the Clerk and Recorder to make rules regarding the disclosure and inspection of public records as are reasonably necessary for protecting records and/or preventing unnecessary interference with the duties of the Clerk and Recorder s Office. In addition, the Act contains specific provisions detailing the circumstances under which the public may inspect election ballots. These specific rules address the issue of how to maintain voter privacy and preserve secrecy in voting, while simultaneously allowing the public to inspect ballots. The purpose of this policy is to provide clear direction to the Eagle County Clerk and Recorder s Office and the public regarding the Clerk and Recorder s obligations to respond to open records requests during election periods. This policy is to be used in conjunction with the Act and the Eagle County Open Records Policy. Where there is a conflict between this policy and the Eagle County Open Records Policy, this policy will control. This policy is subject to interpretation by the Eagle County Attorney s Office, and exceptions may be made in individual circumstances in its sole discretion. For the complete Act, see 24-72-201 et seq., C.R.S. As Colorado law changes, this policy and process will be amended. II. DEFINITIONS The definitions contained in 24-72-201 et seq., C.R.S., as amended from time to time, shall apply to this policy unless the context clearly requires a different meaning. Two definitions of particular relevance are set forth below: Page 1 of 6
Ballot means a ballot voted by an acceptable, applicable, or legal method that is in the custody of an election official. Ballot includes any digital image or electronic representation of votes cast. See 24-72-205.5(2), C.R.S. Interested Party means (a) any candidate who was in an election contest that is the subject of a recount or the political party or political organization, as defined in 1-1- 104(24), C.R.S., of such candidate; (b) any petition representative identified pursuant to 1-40-113 or 31-11-106(2), C.R.S., as applicable, in connection with a ballot issue or ballot question that is the subject of the recount; (c) the governing body that referred a ballot question or ballot issue to the electorate that is the subject of the recount; or (d) the agent of an issue committee that is required to report contributions pursuant to the Fair Campaign Practices Act that either supported or opposed a ballot question or ballot issue that is the subject of the recount. See 24-72-205.5(2), C.R.S. III. PROCEDURE A. REQUESTS RECEIVED IN PROXIMITY TO ELECTIONS The following procedure shall apply to all open records requests received in proximity to election periods. Please review this policy in its entirety before submitting an open records request. 1. Public Inspection of Ballots Stay Period. Except as provided below in Section III.A.3., the Eagle County Clerk and Recorder s Office shall not fulfill an open records request for public inspection of ballots during the period commencing forty-five (45) days preceding a primary or general election day and concluding with the date either by which: an election or a ballot issue or ballot question is certified pursuant to 1-10-102 or 31-10-1205, C.R.S., as applicable, OR any recount conducted in accordance with Article 10.5 of Title 1, C.R.S., or 31-10-1207, C.R.S., is completed, whichever date is later. See 24-72-205.5(3)(a), C.R.S. During the stay period described in this Section III.A.1., the Clerk and Recorder shall also deny the public inspection of internal batch reports generated by the Clerk and Recorder for the specific purpose of auditing ballots received in the course of conducting an election. See 24-72- 205.5(3)(a), C.R.S. 2. Public Inspection of Records other than Ballots Stay Period. Except as provided below in Section III.A.3., during the period commencing twenty (20) days preceding a primary or general election day and concluding with the date either by which: an election or a ballot issue or ballot question is certified pursuant to 1-10-102 or 31-10-1205, C.R.S., as applicable, OR any recount conducted in accordance with Article 10.5 of Title 1, C.R.S., or 31-10-1207, C.R.S., is completed, whichever date is later, Page 2 of 6
the Clerk and Recorder s Office must devote all of its resources to meeting the impending deadline of the election and the numerous statutorily-mandated duties that must take place before, during and after each election. As a result, during the time period set forth in this Section III.A.2., open record requests will not take priority over previously scheduled work activities and duties of the Clerk and Recorder s Office such that a request would interfere with the ability of the Clerk and Recorder s Office to perform its public service responsibilities. Therefore, upon receipt of an open records request for documents other than ballots or internal bath reports which is received during the stay period set forth in this Section III.A.2., the Clerk and Recorder, or his or her designee, will consider the request in light of the following factors: the breadth or volume of the request the time necessary for responding to the request; and the scheduled work activities or duties of the Clerk and Recorder s Office. Following such review, if the Clerk and Recorder, or his or her designee, determines, in his or her discretion, that responding to the request during the stay period set forth in this Section III.A.2. would unnecessarily interfere with the duties of the Clerk and Recorder s Office, the request will be denied. The Clerk and Recorder, in his or her discretion, given the circumstances at the time of the request, and as an alternative to denying the request, may elect to hire a third party to fulfill the request and such cost shall be borne by the requestor. This option shall not be used unless the requestor consents in writing prior to the hiring of a third party to handle the request. 3. Exception to Stay for Recounts. a. Exception for Interested Party. Although the Clerk and Recorder cannot permit public inspection of ballots in connection with a recount conducted during the stay period described in Section III.A.1., above, an Interested Party may observe the recount during such period and request copies of ballots in connection with the recount without a court order. As authorized by the Act, an Interested Party may be present during and observe the handling of ballots involved in the recount to verify that the recount is being conducted in a fair, impartial and uniform manner so as to determine that all ballots that have been cast are accurately interpreted and counted. However, an Interested Party is not permitted to handle the original ballots. Except as specified in this paragraph 3.a., nothing in this Section III shall be construed to prohibit an Interested Party from requesting copies of ballots in connection with a recount, to affect the conduct of a recount, or to affect the rights of an Interested Party in connection with a recount. See 24-72-205.5(3)(b), C.R.S. b. Request for Copies. An Interested Party may request copies of ballots in connection with a recount conducted in accordance with Article 10.5 of Title 1, C.R.S., or 31-10-1207, C.R.S., following completion of such recount. Copies of such ballots will be made available in accordance with Section III.B., below, the Act, and the Eagle County Open Records Policy. Page 3 of 6
4. Response to Request for Public Inspection Received During Stay. If an open records request is received by the Clerk and Recorder s office within the stay periods described in Sections III.A.1 and 2, above, staff shall make a notation on the request stating the date it was received, and shall immediately deliver or email a copy of the request to the County Attorney s Office. The request will be assigned to an attorney for review and determination as to whether the requested records are subject to disclosure. The Attorney s Office will notify the Clerk and Recorder as to the appropriate response, and the Clerk and Recorder, or her designee, will compile the available records, if any, and respond to the request. a. If during the stay period set forth in Section III.A.1., above, the request seeks public inspection of ballots or internal batch reports, the Clerk and Recorder or his or her designee shall respond to the request within three (3) working days beginning on the first working day after the request is received, informing the requestor that disclosure of the requested records during the stay period described in Section III.A.1., above, is prohibited by the Act and this policy, and that the request for records is denied. The requestor may resubmit its request following expiration of the stay period set forth in Section III.A.1., above, if so desired. b. If during the stay period set forth in Section III.A.2., above, the request seeks public inspection of records other than ballots or internal batch reports, and the Clerk and Recorder invokes this policy in response to the request, the Clerk and Recorder, or his or her designee, shall respond to the request within three (3) working days beginning on the first working day after the request is received. The response shall inform the requestor that disclosure of the requested records during the stay period described in Section III.A.2., above, is denied. If deemed a reasonable alternative by the Clerk and Recorder, in his or her discretion, the response may offer the requestor the option of having a third party respond to the request, at the requestor s expense. The requestor may also resubmit its request following expiration of the stay period set forth in Section III.A.2., above, if so desired. B. REQUESTS SUBMITTED PRIOR TO OR FOLLOWING STAY PERIOD A request for public inspection of ballots or internal batch reports received prior to or after the stay period described in Section III.A.1., above, will be treated as an open records request in accordance with this policy, the Act, and the Eagle County Open Records Policy, except that the following rules shall apply in connection with the public inspection of ballots. 1. Inspection of Ballots. a. The original ballots shall at all times remain in the custody of the Clerk and Recorder or his or her designee, and shall not be removed from the Clerk and Recorder s Office. In the discretion of the Clerk and Recorder or his or her designee, and subject to the Act, the Clerk and Recorder or his or her designee shall determine the manner in which the original ballots may be viewed by the public. Except as expressly set forth herein, original ballots will not be made available for public inspection or handling. Instead, copies of ballots may be provided where the cost associated with the production of said copies is paid for in advance by the requesting party. b. Before copies of any ballots will be made available for public inspection, the Clerk and Recorder or his or her designee shall cover or redact, based on the most practical means available, any markings or messages on a ballot which may identify the particular elector Page 4 of 6
who cast the ballot. See 24-72-205.5(4)(b)(II), C.R.S. Any serial numbers which appear on the ballots will also be redacted. c. To protect the privacy of particular electors, any ballots cast by electors within groups of discrete individuals who are more susceptible of being personally identified, such as military and overseas electors, shall be made available for public inspection only to the extent such ballots may be duplicated without identifying elector information. If these types of ballots are not able to be duplicated without identifying elector information, they shall not be available for public inspection. Notwithstanding any other provision of this Section III.B.1.c., no ballot, or any portion thereof, may be made available for inspection where the ballots, or any requested portion thereof, is identical in printed form, considering a combination of the election contests at issue and precinct coding, to only nine or fewer ballots, or comparable portions thereof, among all ballots used in the same election. However, any such ballot, or any requested portion thereof, that is identical in printed form to ten or more ballots, or comparable portions thereof, used in the same election may be inspected following redaction and copying of the same. See 24-72- 205.5(4)(b)(III), C.R.S. d. To further safeguard the privacy of particular electors, copies of ballots made available for inspection may be presented in random order selected by the Clerk and Recorder or his or her designee. See 24-72-205.5(4)(b)(IV), C.R.S. C. FEES In addition to the fee provisions set forth in the Eagle County Open Records Act Policy, the following provisions shall apply to a request for inspection and/or copies of ballots: 1. The fee for a photocopy of a ballot is $.25 per standard page (8 ½ x 11). 2. In addition to the $.25 per page fee, any actual costs incurred by the Clerk and Recorder s Office in making the ballots available for inspection in accordance with the requirements of this policy or the Act may be charged to the person making the request. 3. The requestor will be notified in advance of the fees outlined above. The Clerk and Recorder will not commence work to assemble a response to a request for inspection and/or copies of ballots without prior written approval from the requestor. For request that seeks inspection and/or copies of all available ballots, a deposit of 50% of the estimated cost of the work may be collected by the Clerk and Recorder s Office before work will start. 4. Upon request, and after receipt of payment in full for all costs associated with making the ballots available for inspection, the Clerk and Recorder s Office may ship or mail copies of the available records to the requestor. In such case, the requestor will be required to prepay the cost of the shipping or mailing and any associated staff time incurred in preparing the records for shipping. 5. If the Clerk and Recorder determines, in his or her discretion to select a third person other than an employee of his or her office to conduct the duties required by this section, the actual costs to be charged the person seeking inspection shall not exceed the actual costs that would have been incurred if the work involved in complying with the requirements of this section was completed by an employee of the designated election official. Page 5 of 6
6. For the purpose of minimizing the costs of making ballots available for public inspection, the person seeking the inspection may indicate the candidate contest, ballot issue, or ballot question for which the person seeks to inspect the ballots. D. NO EFFECT ON WATCHER SET OR CANVASS BOARD Notwithstanding any other provision of this section, nothing in this section affects either the rights of a watcher set forth in the provisions of Titles 1 and 31, C.R.S., or the operation of a canvass board in accordance with the provisions of Articles 1 and 13 of Title 1, C.R.S. Page 6 of 6