Rhode Island Advisory Opinions February 29, 2012: AGO PR 12-04 (February 29, 2012)

Rhode Island Attorney General Opinions

2012.

AGO PR 12-04.

Dear Mr. Marion:

The investigation into your Access to Public Records Act ("APRA") complaint filed against the Board of Elections ("Board") is complete. You relate the following facts.

By an undated letter to the Board, you requested "copies of all ballots from the November 2010 election from the Town of Burrillville where voters selected the straight party option." Your letter continues that you:

"realize the ballots are sealed for 22 months and can only be opened by a court order or by a decision by the Board of Elections, per R.I. Gen. Laws §§17-19-39.1 et. seq. We ask the Board of Elections take a vote on this matter."

Your letter concludes by requesting to be placed on the November 8, 2011 Board agenda to "ask that the Board unseal these ballots."

By letter dated October 24, 2011, the Board denied your APRA request on the basis that R.I. Gen. Laws §17-19-39.1 "requires the storage of voted ballots for 22 months form [sic] the date of the election unless ordered open by the state board or a court of law." The Board also cited R.I. Gen. Laws §38-2-2(5)(i)(S) to support its conclusion that the requested documents were exempt from disclosure.

By letter dated January 23, 2012, you filed the instant complaint and, despite the Board's reference to R.I. Gen. Laws §17-19-39.1, you assert that the Board denied your APRA request contending that "the stored voting ballots are required to be kept 'confidential,' by a law which the [Board] has refused to identify." (Emphasis in original). You also related that the Board denied your request to be placed on the agenda to "pursue a vote by the full Board regarding [your] request for these public records." You contend that "no law exists which defines anonymous stored voting ballots as 'confidential' documents."

In response to your complaint, this Department received a substantive response from the Board's legal counsel, Raymond A. Marcaccio, Esquire, as well as an affidavit from the Board's Director, Robert Kando, Esquire. Mr. Marcaccio relates that the "ballots are stored with the local board of canvassers" and cites R.I. Gen. Laws §17-19-39.1 to support the Board's position. According to Mr. Marcaccio, R.I. Gen. Laws §17-19-39.1 "provides for the exclusive method of opening voted ballots," and therefore, the requested documents are exempt under the APRA. To advance this argument, Mr. Marcaccio also cites In re Decision of the State Board of Elections Dated November 19, 1999 v. North Carolina State Board of Elections, , 898 (N.C. App. 2002). Mr. Kando's affidavit provides some policy arguments underlying R.I. Gen. Laws §17-19-39.1 and is otherwise in accord with Mr. Marcaccio's response.

In examining whether a violation of the APRA has occurred, we are mindful that our mandate is not to substitute this Department's independent judgment concerning whether an infraction has occurred, but instead, to interpret and enforce the APRA as the General Assembly has written this law and as the Rhode Island Supreme Court has interpreted its provisions. In other words, we do not write on a blank slate.

Unless exempt, the APRA requires that all records maintained or kept on file by any public body, whether or not those records are required by any law or by any rule or regulation, shall be public records and every person or entity shall have the right to inspect and/or copy those records at such reasonable time as may be determined by the custodian. R.I. Gen. Laws §38-2-3(a).

Rhode Island General Laws §17-19-39.1 provides that:

"[v]oted computer ballots that were counted at the state board shall be stored in containers by the state board until the expiration of twenty-two (22) months from the date of election and voted computer ballots that were voted and packaged at a local precinct or counted at the local board shall be held and stored in containers by the local board in accordance with the regulations promulgated by the state board until the expiration of twenty-two (22) months from the date of election. The voted ballots shall remain stored in the appropriate containers unless ordered to be opened by the state board or a court of law. The computer file containing ballot layout information and candidate totals shall be transferred to a disk and retained permanently. (Emphasis added).

Here, based upon the plain language of the above emphasized provision, we must conclude that voted ballots from the November 2010 election "shall remain stored in the appropriate containers unless ordered to be opened by the state board or a court of law." Since R.I. Gen. Laws §17-19-39.1 provides that the voted ballots within this twenty-two (22) month timeframe may be removed from the appropriate containers only under these two circumstances, i.e., ordered opened by the Board or by a court of law, the requested documents cannot be considered public records at this time in accordance with the APRA. See R.I. Gen. Laws §38-2-2(5)(i)(S)(exempting "[r]ecords, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law, or rule of court"). As provided by Mr. Marcaccio, we are aware of at least one case with a similar statutory framework that supports this conclusion. Specifically, under similar circumstances, the North Carolina Court of Appeals observed:

"the General Assembly enacted, as a part of the election laws, section 163-171, which specifically provides a method for obtaining access to ballots that have been cast in an election. This section unequivocally provides that ballot boxes shall be opened only 'upon the written order of the county board of elections or upon a proper order of court.' Thus, section 163-171 constitutes a 'clear statutory exemption or exception' to the Act and provides the exclusive method for accessing ballots." In re Decision of the State Board of Elections Dated November 19, 1999 v. North Carolina State Board of Elections, , 898 (N.C. App. Ct. 2002)(internal citations omitted).

While we recognize that policy arguments may be made both in support and in contravention of your position, respectfully, we cannot (and do not) consider these policy arguments and instead limit our consideration to the plain language of R.I. Gen. Laws §17-19-39.1. In doing so, we note your argument (presented in a January 30, 2012 e-mail to this Department) that this case may somehow be distinguishable from the plain language of R.I. Gen. Laws §17-19-39.1 because you "requested to be put on the agenda of the Board of Elections meeting because [you] recognized that the records can be released by a vote of the Board." The fact that the requested records can only be released upon a vote of the Board or a court order, however, reinforces the conclusion that the requested records are not public records that must be disclosed upon request. R.I. Gen. Laws §38-2-2(5)(i)(S). Lastly, although the above should already make this point clear, this finding is limited to this Department's interpretation of the APRA (which must necessarily include our consideration of R.I. Gen. Laws §17-19-39.1) and does not consider the policy arguments concerning whether the requested records should be disclosed by the Board or by a court of law. This determination is beyond the purview of this Department.

For all of these reasons, we find no violation. Nothing within the APRA prohibits an individual from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in the Superior Court. Our file is now closed.

We thank you for your interest in keeping government open and accountable to the public

Very truly yours,

Michael W. Field

Assistant Attorney General

Cc: Raymond A. Marcaccio, Esquire