Transcript Public Access to Election Records Heather Willis Neal Public Access Counselor Circuit Court Clerks’ Conference June 10, 2008

Public Access to
Election Records
Heather Willis Neal
Public Access Counselor
Circuit Court Clerks’ Conference
June 10, 2008
Access to Public Records Act
Basics
“Providing persons with the information is
an essential function of a representative
government and an integral part of the
routine duties of public officials and
employees, whose duty it is to provide the
information.”
 The full text of APRA can be found at I.C.
5-14-3.

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Access to Public Records Act
Basics

“Public records” are broadly defined: can
be summarized as “any material that is
created, received, retained, maintained or
filed by or with a public agency.”

The Indiana Court of Appeals has added
to this definition any material created for
or on behalf of a public agency.
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Access to Public Records Act
Basics

“Copy” includes photocopying as well as
making a digital copy using a digital
camera or a hand-held scanner.

“Inspect” includes the right to make notes,
abstracts and memoranda, or to listen to
an audiotape.
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Access to Public Records Act
Basics

The agency may require a person to submit a
request for a public record in writing, on or in a
form supplied by the agency.
– Example: VRG-24 to request voter registration list

The agency shall either make the requested
copy or allow the person to make a copy on the
agency’s equipment or on the person’s own
equipment.
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Access to Public Records Act
Basics

An agency must make reasonable efforts to
provide a copy of electronic data to a person if
the medium requested is compatible with the
agency’s system.

If a record contains disclosable and
nondisclosable information, the agency shall
separate the disclosable material and make it
available.
– Example: SSN on a voter registration record
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Access to Public Records Act
Basics

Public Agency’s Responsibility
– Respond to requests made in person or over
telephone within 24 hours of receipt.
– Respond to mailed, faxed, or e-mailed
requests within 7 calendar days of receipt.
– Respond in writing to written requests for
records; best practice is to respond to all
requests in writing.
– Responding is not necessarily producing the
record – no deadlines for production.
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Access to Public Records Act
Basics

Agency’s Responsibility, continued
– If denying records in response to a written
request, state reason for denial with citation
to authority, and give name and title or
position of person responsible for denial.
– Produce records in reasonable time;
communication with person requesting is key.
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Access to Public Records Act
Basics

Exemptions to disclosure I.C. § 5-14-3-4
– Section 4(a) categories are confidential
– Declared confidential by state statute
– Required to be kept confidential by federal
law
– Declared confidential by rule adopted by
Indiana supreme court (Administrative Rule 9)
– Social security number contained in the
records of a public agency
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Access to Public Records Act Basics

Exemptions to disclosure I.C. § 5-14-3-4
– Section 4(b) are discretionary categories
– Attorney work product
– Personnel file information, except for
information that must be disclosed
– Inter or intra-agency deliberative material,
which is expression of opinion and is
communicated for the purpose of decision
making
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Access to Public Records Act
Basics

Fees
– Local agencies may charge only the fee
schedule adopted by the fiscal body of the
agency.
– May not exceed the actual cost for providing a
copy of the public record.
– Actual cost is the cost of the paper and per
page cost for use of the equipment.
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Access to Public Records Act
Basics

Fees, continued
– APRA’s general provisions on fees are
superseded by a specific statute allowing
higher fee.
– Clerks have specific statute allowing a higher
fee: I.C. § 33-37-5-1
– Agencies may require advance payment.
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Access to Election Records

Voter registration records
– Generally, voter registration affidavits or forms must
be available at reasonable times for public inspection,
transcription, and copying. I.C. § 3-7-27-12.
– Exceptions to public inspection and copying of voter
registration records:
 Records concerning declinations to register to vote
 Records that indicate the identity of a voter registration
agency where a person registered
 Registration records of participants in the attorney general’s
confidentiality program for abused persons
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Access to Election Records

Voter registration records
– The county election board shall adopt a policy with
regard to electronic voter registration information.
The policy must either permit a person to obtain a
copy of the electronic voter registration information or
not permit a person to obtain a copy of the
information. I.C. § 3-7-27-6(c).
– The person may not use the information to solicit
merchandise, goods, services, or subscriptions or sell,
loan, give away, or otherwise deliver the information
to any other person for a purpose other than political
activities or political fundraising activities. State Form
VRG-24 must be used.
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Access to Election Records

Election materials
– The general rule for retention of election
materials is that they must be retained for 22
months from the date of the election. I.C. §
3-10-31.1-1(c). Any record concerning an
issue in litigation must be retained until the
controversy is resolved, subject to court
orders.
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Access to Election Records

Election materials
– The general rule for election materials is that
they are available for public inspection and
copying after the period for filing and recount
and contest has expired. I.C. § 3-10-31.11(c).
– This includes poll lists, applications for
absentee ballots, ballot envelopes, tally
sheets, and the computer programs used to
tabulate votes.
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Access to Election Records

Election materials
– Exceptions to public inspection and copying
 Unused ballots may be disposed of after the time
for filing a petition for recount or contest has
expired. I.C. § 3-11-3-31.
 Affidavits challenging voter as an illegal voter must
be opened and copied. I.C. § 3-14-5-2.
 If an order is issued under I.C. § 3-12-6-19, I.C. §
3-12-11-16, or 42 U.S.C. 1973, continued
preservation of the confidentiality of the records is
required.
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Access to Election Records

Election materials
– Exceptions to public inspection and copying
 If a petition for a recount or contest is filed, the
election material remains confidential until
completion of the recount or contest. I.C. § 3-1031.1-1(d).
 Ballots remain confidential even after the period
for filing a petition for recount or contest has
expired. I.C. § 3-10-31.1-1(c).
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Access to Election Records

Absentee ballot election materials
– If a county voter registration office
determines that the inspection and copying of
precinct election material would reveal the
political parties, candidates, and public
questions for which an individual cast an
absentee ballot, the county voter registration
office shall keep confidential only the part of
the election material necessary to protect the
secrecy of the voter’s ballot. I.C. § 3-10-31.11(f).
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Access to Election Records

Poll lists
– Upon delivery of the poll lists, the voter
registration office may unseal the envelopes
containing the poll lists for the purposes of
cancellation, transfer, name change, or
addition of a registration. Upon completion of
inspection, the poll list shall be preserved with
the ballots and other election materials. I.C.
§ 3-10-31.1-1(e).
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Access to Public Records Act Basics

Retention of records
– The APRA requires an agency to protect
records from loss, alteration, mutilation, or
destruction.
– Each county should have a commission on
public records to adopt retention schedules.
The state oversight committee on public
records has set general retention schedules
for cities and towns which can be found at
www.in.gov/icpr/county/coretention.
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Access to Public Records Act
Enforcement Provisions
A person may file a complaint with the
public access counselor alleging a denial
of a right under APRA. The PAC sends
formal complaint to the agency for
response and issues a formal advisory
opinion within 30 days.
 A person may file a lawsuit in superior
court to compel the agency to produce a
record.
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Office of the Public Access
Counselor

Our contact information
– 402 West Washington Street, W460
Indianapolis 46204
– Fax: 317.233.3091
– Toll free: 800.228.6013
– Phone: 317.234.0906
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Visit our website at www.in.gov/pac for the
Public Access Handbook (updated in 2008),
advisory opinions and other reference materials
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