Guidance from TAC on KP-0411

KP-0411: Elections & the Public Information Act

Attorney general opinion KP-0411, issued Aug. 17, 2022, will impact county election officials' ability to conduct elections in an efficient manner while simultaneously having to comply with public information requests to view voted ballots just after an election has concluded. Click on each section heading to expand.

Background

The question of when the public may have access to review voted ballots had been settled in elections administration for over 30 years. In Tex. Att'y Gen. ORD-505(1988), the Attorney General determined voted ballots of an election were public information but exempt from public inspection during the statutorily mandated preservation period. At the conclusion of the preservation period, the voted ballots would become available for public inspection both under the Public Information Act and Section 1.012 of the Texas Election Code (the "Code") under which all election records are public information except as otherwise provided by the Code or the Texas Public Information Act.[1]

The rationale of the original opinion was that precinct election records, which include voted ballots, are required to be preserved for twenty-two months following the election.[2] Texas Election Code Section 66.058(b-1) requires that a ballot box or secure container containing voted ballots not be opened during this period except as permitted by the Election Code. Recounts, election contests, partial manual counts, and court ordered entry to retrieve erroneously placed records are examples in which the general custodian of election records[3] is expressly authorized to enter a ballot box or secure container with voted ballots during the preservation period. Compliance with a public information request is not an expressly authorized reason to enter the boxes during the preservation period; however, after the twenty-two-month period has ended and a request to review the voted ballots is received prior to their destruction, the 66.058(b-1) prohibition no longer applies, and the county must comply with the outstanding request before being able to destroy the voted ballots of an election.

Overview of KP-0411

On Aug. 17, 2022, the Attorney General issued a new opinion, KP-0411, which overrules ORD-505 and suggests the public has a right of access to voted ballots during rather than after the statutorily mandated preservation period. We note that there were no substantive changes in the law concerning preservation of election records between the issuance of ORD-505 and the new opinion. We also note the Texas Secretary of State submitted a letter to the Attorney General in which it urged him to uphold the prior interpretation of law.[4]

KP-0411 represents the Attorney General's opinion on the proper interplay between the requirements of the Public Information Act and the Election Code's right of access to public information and state and federal requirements of maintaining ballots securely after the completion of the election.

The Attorney General opines in KP-0411 that compliance with a request under the Public Information Act is an authorized ground for entry into the locked ballot boxes and secured containers containing voted ballots. Because it is an authorized ground, the boxes and containers with voted ballots may be opened multiple times during the preservation period as necessary to comply with the request. The Attorney General also states that the access is specific to "anonymous voted ballots."

The opinion provides that the general custodian of election records and the Secretary of State both may establish procedures to accomplish the twin priorities of maintaining security of the voted ballots and providing the required public access.[5] The Attorney General does not provide guidance on how general custodians of election records are meant to accomplish these simultaneous goals.

We understand that while the Secretary of State may offer guidance on how to maintain the security of the voted ballots and other records, they likely will defer to the Attorney General on issues concerning compliance with the Public Information Act.

Impact of KP-0411

Counties are already facing a deluge of requests for records from the 2020 general and primary elections as their preservation period came to an end on Sept. 4, 2022. In the weeks since the issuance of KP-0411, such requests have increased. County election official expect to receive requests to review voted ballots for the November 2022 general election immediately after that election.

County election officials have expressed concerns with the potential impact of KP-0411 on handling requests to view election records for the November 2022 general election for state and county officers and beyond. Those counties who have already had to comply with requests to review all the voted ballots for the 2020 election have anecdotally reported costs for providing floor space and additional hours for elections personnel (at a time when they are also preparing for an upcoming election) to be present while the ballots are reviewed to maintain ballot security. Potential costs would obviously vary by size of county and by the number of requests to review the ballots that could not be accommodated at individual sessions. If post-election review of voted ballots, effectively in the form of unofficial election recounts, become a common occurrence, counties may have to address the additional costs in their election budgets.

Considerations

Click on each question to expand the answer.

If the general custodian of election records does not have a requested record, what should the custodian do?

The Public Information Act does not require a county to provide records that do not exist or to create records on the requestor's behalf.

If requestor wants to view voted ballots in person, may the general custodian of election records set the date and time for review?

Yes. KP-0411 states that the custodian of election records may establish procedures to accomplish the dual priorities of ballot preservation and public access to anonymous voted ballots. In addition, Section 1.012(b) of the Code allows a custodian to adopt reasonable rules limiting public access for the purpose of safeguarding the election records or economizing the custodian's time. A custodian may need additional time to ensure the voted ballots or other requested documents do not contain voter identifying information. A custodian may, during a period in which the custodian is chiefly concerned with conducting an election, need to economize his or her time by providing a date and time for review to a period after the election.

Once the custodian of election records has set the date and time for review, Section 552.225 of the Government Code provides that a requestor must complete examination of the information not later than the 10th business day after the date the custodian of election records makes it available.[7] If the requestor does not complete the examination within the 10 business days and does not file a request for additional time, the request is considered to have been withdrawn. A requestor may submit a written request for an additional 10 business days to review the information during the initial 10 business day review period. The requestor may file a written request for another extension of 10 business days during the second review period.

Should we request an Open Record Decision on each received request?

This is the position some county attorneys have taken in the absence of guidance from the Attorney General on issues such as the timing of compliance with requests and questions as to adequate security. Additionally, KP-0411 prohibits release of records that contain voter-identifying data. The opinion does not describe what constitutes such data. For example, would a county be required to release information pertaining to a military voter who voted with a federal postcard application (FPCA) if the release of other precinct information could be used to reveal that person's vote?

To request an Open Records Decision (ORD), the county must notify the requestor within 10 business days of the public information request's receipt that the county will seek an ORD. The county must submit the ORD request to the Attorney General within 15 days of the request's receipt. The letter must contain the relevant documents or a representative sample of the documents and must assert any proposed exceptions under the Public Information Act for redaction of information within the documents. A copy of the cover letter must be sent to the requestor and any interested third parties, such as the voting systems vendor.

Should the voting system vendor be contacted about a request for public information?

Counties should review their voting system vendor contracts. It is common for technology contracts to contain a clause requiring a vendor to be notified of public information requests or litigation that may lead to dissemination of the vendor's work product so that the vendor may pursue actions necessary to defend what they may regard as trade secrets. This requirement to notify is likely effective even in a situation in which the documents are clearly available to the public under the Public Information Act or other law, such as voting systems manuals, instructions, and other documentation which are considered available for public inspection under Section 123.008, Texas Election Code. A county's vendor may wish the county to request an Open Records Decision from the Attorney General — even if the county itself has no objection to releasing the material — so that the vendor may present arguments directly to the Attorney General on why the documents should not be released or information within the documents should be redacted before release.

(Note also that all communications with the vendor to notify them of the request is public information under Section 121.004 of the Texas Election Code).

How soon after Election Day may a person review voted ballots for that election?

Section 66.058(b), Texas Election Code requires the voted ballots to be locked in the ballot box for 60 days after the election. At the conclusion of this period the ballots may be transferred into another container in which they must be preserved for 22 months. Although KP-0411 is not as clear on this point as one would have wished, our current understanding is that during the 60-day period immediately after the election voted ballots are inaccessible except for purposes such as recounts; it is after the 60-day period when the voter ballots may be transferred from the original locked boxes to secure containers that the opinion suggests the ballots become accessible for public review.

What is a reasonable amount of time for a county to gather requested documents?

We do not yet have a guide on what constitutes a "reasonable" time. The Public Information Act requires the response to a request for public information to either provide the requested information or provide the requestor with a certification that the information is unavailable and set a reasonable date and hour when the information will be available for duplication.[6]

KP-0411 indicates that custodians of election records may set rules as necessary to provide security of election records. Reviewing documents to ensure that confidential information is not provided to the requestor is a part of the gathering process. If a custodian of election records needs additional time to provide such security, especially as necessary to ensure that no personally identifying information is provided to a requestor, the requestor should do so.

Section 1.012, Election Code requires electronic records to be made available no later than the 15th day after Election Day.

May a county address increased costs of compliance with public information requests in its election contracts with other entities?

Yes. If a county determines that increased public information requests are having an impact on the overall costs of conducting its election, the county may wish to reflect the increase in the required itemized list of estimated election expenses in its contracts.[8]

Should a county with Public Official coverage with TAC Risk Management Pool contact the pool if litigation is anticipated regarding public information and election records?

Yes. As remedies under the PIA generally do not involve money damages, the litigation itself likely would not be covered under a county's PO coverage. With that said, a county that anticipates litigation should contact the Pool as the Pool may be able to offer advice on resources.

If a county has coverage through an entity other than TAC RMP, it should contact that entity for guidance.

Texas Gov't Code Ann. §552.001 et. sec.
Tex. Elec. Code Ann. §66.058(a).
For elections ordered by the governor, a county authority, or primary elections, the general custodian of election records is the county clerk or the county election administrator. Tex. Elec. Code Ann. §66.001(1).
September 30, 2021 letter from Adam Bitter, General Counsel, Office of Texas Secretary of State, to Ken Paxton: "The voted ballots are the core of the election process and the prohibition on disturbing the ballots (except in limited circumstances as permitted by the Election Code) preserves the integrity of the election itself. Handling of the voted ballots themselves opens up the possibility of accidental or intentional damage or misplacement that could call into question the election after the fact."
KP-0411 at pg. 4.
Tex. Gov't Code Ann. §552.221(d).
Id. §552.225.
Tex. Elec Code Ann. §31.100(c).

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