Oregon Advisory Opinions October 13, 1977: OAG 77-123 (October 13, 1977)

OAG 77-123.

ORS 260.650(1) provides

"(1) No election officer shall disclose to any person the name of any candidate for whom any elector has voted or give any information by which it can be ascertained for whom any elector has voted."

This language, in virtually identical form, has been on the statute books since 1891. Taken literally it could mean that a poll book (which under ORS 250.645 must record which electors

in a precinct actually cast a ballot at the polling place) must be hidden from the public if the precinct votes were cast unanimously for a candidate, or for or against a measure. This would be so because simply to know that John Doe voted would disclose how he voted.

Taken to the extreme it could mean that the vote of a precinct which voted unanimously on a candidate or measure could not even be reported, because it may be locally wellknown which electors went to the polling place on election day.

We are dealing here with public records of a most important nature in a democracy, and do not interpret ORS 260.650(1) to mandate such secrecy. True, the legislature is authorized to provide for the private ballot:

". . . in all elections by the people, votes shall be given openly, or viva voce , until the Legislative Assembly shall otherwise direct.--" Or Const art II, §15.

However, we do not believe the 1891 law was intended to conceal any records required to be kept and otherwise available for public inspection.

In 1973 the concept of public disclosure of public records, already a salient point of Oregon law,(fn1) was emphasized by enactment of ORS 192.410 et seq relating to inspection of public records. The only exemption from disclosure which might be considered applicable here is ORS 192.500(2)(b) regarding

"(b) Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy;"

Not only are the words foreign to the nature of official election records kept as required by law but a substantial burden is placed on someone having a sincere interest, totally unrelated to curiosity as to how a particular person voted, in examining election records.

We conclude that the words "or give information by which it can be ascertained for whom any elector has voted" carry with them a connotation of abuse of office and that the legislature was simply prohibiting election officers from deliberately doing indirectly that which they could not do directly.

ORS 260.650(1) does not authorize withholding official election records from public inspection.