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Re: FOIA and ballots



To paraphrase Stephen's question are the Florida Ballots subject to Florida's
FOI act.  To which Charles Conaway answered by posting the pertinent
retention schedule for the ballots. No problem there but it does not mention
anything about FOIA.
Now let me bring up another point

Earlier in the week I posed the following question concerning the ballots.
The FLORIDA GENERAL RECORDS SCHEDULE GS3 FOR SUPERVISORS OF ELECTIONS. Issue
Date: May 1999. Item # 11 BALLOTS, OFFICIAL: FEDERAL OFFICE  references 42
USC 1974 as the basis for the retention period. (see below for the exact
wording).

Now where I am confused is that the statute appears to refer to records and
papers necessary to vote ie registrations, poll tax etc. How is this
construed to include the ballots themselves?

Sec. 1974. Retention and preservation of records and papers by officers of
elections; deposit with custodian; penalty for violation

"Every officer of election shall retain and preserve, for a period of
twenty-two months from the date of any general, special, or primary election
of which candidates for the office of President, Vice President,
presidential elector, Member of the Senate, Member of the House of
Representatives, or Resident Commissioner from the Commonwealth of Puerto
Rico are voted for, all records and papers which come into his possession
relating to any application, registration, payment of poll tax, or other act
requisite to voting in such election,"

Full Federal election franchise chapter can be found at this link:
http://www4.law.cornell.edu/uscode/42/ch20.html#PC20

Now onto Steve's question. Apparently the ballots are subject to the FOIA law
(Title X  Chapter 119 Public Records) (here follows some excerpts concerning
exemptions)
119.07  Inspection, examination, and duplication of records; exemptions.--
(1)(a)  Every person who has custody of a public record shall permit the
record to be inspected and examined by any person desiring to do so, at any
reasonable time, under reasonable conditions, and under supervision by the
custodian of the public record or the custodian's designee. ...
(c)  When ballots are produced under this section for inspection or
examination, no persons other than the supervisor of elections or the
supervisor's employees shall touch the ballots. The supervisor of elections
shall make a reasonable effort to notify all candidates by telephone or
otherwise of the time and place of the inspection or examination. All such
candidates, or their representatives, shall be allowed to be present during
the inspection or examination.

Of course the following part of Chapter 119 may have some control
119.11  Accelerated hearing; immediate compliance.--
(1)  Whenever an action is filed to enforce the provisions of this chapter,
the court shall set an immediate hearing, giving the case priority over other
pending cases.
(3)  A stay order shall not be issued unless the court determines that there
is a substantial probability that opening the records for inspection will
result in significant damage.

So I suspect that if any were to file an open records request for the ballots
then they must be produced BUT the custodian of the ballots must notify the
candidates (ALL? candidates represented on the ballot since other offices
were records on the same ballot) which probably means  a load of attorneys
trooping in to court to file motions under 119.11(3) stating that opening the
records (ballots) will result in significant damage to the candidate(s). Thus
I don't think that any one is going to be able to just walk in and review the
ballots. (not a legal opinion just a personal opinion)

Now is everyone as confused as I am.





Peter A. Kurilecz CRM, CA
Richmond, Va
pakurilecz@aol.com

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