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Municipalities have a clear statutory duty to respond to Freedom of Information Act (“FOIA”) requests related to public records concerning the administration of an election. By appropriately responding to such requests, municipalities can build trust between their residents and local government leaders while avoiding unnecessary litigation. This E-Letter specifically explores election-related FOIA requests by discussing the recent uptick in election-related FOIA requests, examining common examples of requested records and exploring a municipality’s obligation to appropriately respond. This E-Letter concludes by offering best practices in responding to election-related FOIA requests.

Introduction

Municipalities have reported receiving an increased number of FOIA requests related to election procedures and materials in recent years. These requests often seek a voluminous amount of information including copies of ballots, voter information, and other records related to election administration. Election-related FOIA requests are understandably overwhelming to most municipalities as they present the prospect of a municipality being required to exhaust important resources to appropriately respond to complex record requests, all while balancing an interest in maintaining election security and integrity. Complex questions are almost certain to arise such as the following: What must a municipality disclose? What can a municipality disclose? How can a municipality recover the costs associated with compiling the records sought? How can a municipality seek additional time in responding to a request? What if the records no longer exist? How does a municipality deliver the requested records? It is important for a municipality to understand its obligations and potential options for appropriately responding to election-related FOIA requests so that it can act in a cost-efficient manner, avoid expensive FOIA litigation, and protect the State of Michigan’s election systems.

This E-Letter is intended to provide readers with a broad overview of what a municipality may expect with an election-related FOIA request, as well as potential approaches in responding to such requests. The information presented herein does not constitute legal advice with respect to any specific FOIA request, nor is it meant to be exhaustive of the type of election-related FOIA requests a municipality may receive. Readers are encouraged to consult independent legal counsel to assist in appropriately responding to election-related FOIA requests received by the municipality.

RESPONDING TO A REQUEST: THE BASICS

MCL 15.233(1) provides “upon providing a public body’s FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record, a person has a right to inspect, copy, or receive copies of the requested public record of the public body.” A “public record” is defined as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” MCL 15.232(i). The FOIA has a broad stated purpose that it is the policy of the state that people “are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees . . . so that they may fully participate in the democratic process.” MCL 15.231(2).

The FOIA also requires full disclosure of public records unless there is a legislatively created exemption or the request fails to meet the requirements of a request under the FOIA. See Swickard v Wayne County Medical Examiner, 438 Mich 536, 544 (1991). Considering this general background of the FOIA, it should come as no surprise that some election-related material is subject to disclosure under the FOIA. Thus, when your municipality receives a request for records under the FOIA, it must respond within five business by doing one of the following:

• Granting the request;
• Denying the request;
• Granting the request in part and denying the request in part; or
• Issuing a notice requesting an additional ten business days to respond to the request.

ELECTION-RELATED FOIA REQUESTS: COMMON EXAMPLES

Municipalities therefore are in fact required to respond to election-related FOIA requests made under MCL 15.231 et seq. and must respond within the statutory time constraints. However, not all election-related material or information should be disclosed, and it may be necessary to withhold or redact the same under some circumstances.

The following is a general overview of common examples of election-related public records that are often subject to FOIA requests and any related exemptions that may apply, if any:

BALLOTS. A FOIA requestor may provide a written request seeking copies of voted ballots or the requestor may seek to examine the voted ballots themselves. A voted ballot is an untraceable ballot cast during an election at the polls or by absentee ballot. A Michigan Attorney General Opinion from 2010 provides “[v]oted ballots, which are not traceable to the individual voter, are public records subject to disclosure under the Freedom of Information Act” because the voted ballots are writings used by a public body in the performance of an official function (administering an election). As voted ballots are untraceable, they avoid constitutional concerns under the Michigan Constitution which require the secrecy of ballots. Ballots should not be disclosed when the ballots are traceable to the individual voter and compromise the secrecy of the ballot.

The manner in which disclosure is carried out is critical because the manner of disclosure must protect the physical integrity and security of the ballots. Further, pursuant to federal law, election documentation is retained either physically by election officials themselves, or under their direct administrative supervision consistent with such law. Thus, when ballots are disclosed under FOIA, no person other than the clerk or office staff designated by the clerk should have any form of direct or indirect access to the ballots, ballot containers, or ballot bags. To the extent your municipality receives a request for ballots, it should follow all ballot disclosure procedures or directions set forth by the State of Michigan and consult legal counsel.

VOTER INFORMATION. A FOIA requestor may provide a written request seeking records containing voter information, such as a list of absentee voters located in the QVF software or absentee voter jacket information. Generally, a voter’s name and address are subject to disclosure unless coupled with other information that raises privacy concerns. Certain specific data derived from the QVF electronic pollbook may also be subject to disclosure under FOIA, including lists of registered voters. Those lists typically include some identifying information, such as the birthdate of the registered voter. A municipality should not simply deny a request for records because it may contain some personal information in addition to other non-exempt information. Instead, the FOIA requires the municipality to “separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.” MCL 15.244(1). For example, a municipality is prohibited under the Michigan Election Law, MCL 168.509gg, from disclosing any of the following: (1) the record a person declined to register to vote; (2) the office that received a registered voter’s application; (3) a voter’s driver’s license or state personal identification card number; (4) the month and date of birth of a registered voter; (5) the telephone number provided by a registered voter; (6) the digitized signature of a registered voter; and (7) the last four digits of an individual’s social security number. To the extent the responsive records contain any of this exempt information, the public body should redact the exempt information but otherwise disclose the nonexempt information.

Further, if other electronic poll book files or records are requested that contain personal identifying information, note that in some circumstances a municipality can decide whether to apply the FOIA’s privacy exemption and deny disclosure. The privacy exemption applies to information that: (1) is of a personal nature; and (2) if disclosed would constitute “a clearly unwarranted invasion” of an individual’s privacy. MCL 15.243(a). Keeping in mind the FOIA’s pro-disclosure stance, however, note that this exemption may not always apply.

OTHER QVF OR POLLBOOK DATA OR SOFTWARE. A FOIA requestor may provide a written request for certain software or election data, such as QVF extracts or pollbook flash drives. While computer software does not constitute a “public record” subject to disclosure under the FOIA, this does not include computer-stored information or data. Thus, requests to inspect or receive a copy of election software itself will fall outside of the bounds of the FOIA. However, certain information or data contained within the election software may nonetheless be subject to disclosure. However, depending on the request, the disclosure of election-related information or data could cause security concerns and may warrant withholding or redaction.

If the information, data or records requested were designed to protect the security, safety, confidentiality and integrity of Michigan elections, such information may be subject to withholding or redaction under MCL 15.243(1)(y) and (z). The former generally permits a municipality to redact or withhold “records or information of measures designed to protect the security or safety of persons or property, or the confidentiality, integrity, or availability of information systems . . .”, unless “disclosure would not impair a public body’s ability to protect the security or safety of persons or property or unless the public interest in disclosure outweighs the public interest in nondisclosure in the particular instance.” The latter generally permits a municipality to redact or withhold information that may cause a cybersecurity incident or that may disclose cybersecurity plans, related practices, procedures, methods, results, organizational information system infrastructure, hardware, or software. Therefore, to the extent the disclosure of requested records poses a security risk to the voting systems, infrastructure, hardware or software, it may be lawful to redact or withhold such information or records.

VAGUE AND OVERBROAD REQUESTS. It is possible that your municipality may receive a vague or overbroad request for election records, such as a request seeking “all evidence” relating to an election. While municipalities have a general obligation under the FOIA to provide requestors with public records, a request must first sufficiently describe a public record(s) to enable the public body to find the record(s) requested. MCL 15.233(1). Most notably, the Michigan Court of Appeals has held a request seeking “a copy of all correspondence with all Federal law enforcement/investigative agencies” over the course of about a year’s time was “absurdly overbroad” thus not enabling the public body to sufficiently identify the records as required under the FOIA. See Capitol Information Ass’n v Ann Arbor Police, 138 Mich App 655 (1984). The Michigan Attorney General has also issued guidance that “the term ‘all records’ is too broad to constitute identification of the records being sought” in some instances. OAG, 1978-1979, No. 5500, p 255 (July 23, 1979). In some circumstances, legal precedent may support a conclusion that a denial is permitted due to the request lacking a sufficient description of the requested records.

REQUESTS FOR ANSWERS: NO PUBLIC RECORD. It is also possible that your municipality will receive FOIA requests seeking either records that are no longer in your municipality’s possession, or requests to answer election-related questions. Generally, the FOIA does not require a municipality to make a compilation, summary, or report of information, or a new public record to respond to a request. If your public body possesses a public record that contains the information requested, there may still exist an obligation under the FOIA to disclose the responsive public record containing the information requested. However, to the extent your public body does not possess or maintain a public record that responds to questions asked or no longer holds responsive records, a denial may be appropriate for lack of responsive records. A denial for lack of responsive records requires the public body certify that the public record does not exist under the name given by the requester or by another name reasonably known to the public body.

ELECTION-RELATED FOIA REQUESTS: APPROACH AND BEST PRACTICES

Of course, FOIA requests and a municipality’s obligation in responding thereto depends heavily on the specific facts and language of the request itself. This E-Letter does not address all potential election-related FOIA requests a municipality may receive. However, the below serves as a general overview of a recommended approach municipalities may take when presented with such a request, as well as best practice tips and tricks. By following this process, a municipality can request additional time to fulfill a request, request costs, and appropriately determine what records must be disclosed and what records may be exempt from disclosure.

• First, seek independent legal counsel with experience in responding to FOIA requests, and/or rely on the guidance provided by the Michigan Secretary of State or Bureau of Elections.
• Second, appropriately respond to the request under MCL 15.235 within 5 business days of receiving the request. Note, a municipality can request a ten-business day extension (giving the municipality fifteen business days in total to respond) if needed under MCL 15.235(2)(d).
• If there are responsive records, the municipality should determine whether the estimated costs to process the request will exceed $50.00. If the municipality’s good-faith calculation of the total fees expected to be incurred in fulfilling the FOIA exceeds $50.00, the municipality can likely request a good-faith deposit of ½ of the total estimated fee under MCL 15.234(8) before searching for or copying the records.

NOTE: If you would like to learn more about the good-faith deposit process, please see our article entitled “Beginner’s Guide to Conquering Large-Scale FOIA Requests,” available here: https://fsbrlaw.com/2021/07/30/beginners-guide-to-conquering-large-scale-foia-requests/.

• If you request a good faith deposit and it is received, begin searching for and locating responsive records. Otherwise, after locating responsive records, determine which records/information can be withheld/redacted. As mentioned previously, the FOIA requires full disclosure of public records unless there is a legislatively created exemption or the request fails to meet the requirements of a request under the FOIA.

NOTE: It is best practice for the FOIA Coordinator to track the actual time and costs incurred to be included in the final cost sheet to be presented to the requestor prior to final disclosure of the records.

• The municipality should request the full payment of costs associated with fulfilling the request prior to the disclosure of responsive records.

Election-related FOIA requests are at times complex and present difficult legal questions. Fulfilling such requests may also require a municipality to exhaust valuable time and resources. Understandably, municipalities may feel overwhelmed and burdened when they receive election-related FOIA requests. However, municipalities should rest assured that by following the guidance and best practices in this E-Letter, they are capable of appropriately responding to any potential election-related FOIA request that is received.

By Kendall O’Connor and David Szymanski

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.