Denver County 2015 CORA Conversation

To see the original CORA request in full click here: Denver County October 2015 CORA Request

Date: 10/14/2015 2:48 PM

To Amber McReynolds, c/o Denver County Clerk and Recorder

(Dominion)

Dear Clerk and Recorder or other records custodian if applicable:
 Thanks so much for your efforts making ballots from the municipal election available.

Your county is piloting a new voting system in the November 2015 Coordinated Election.  This email serves as a Colorado Open Records Request for electronic copies of the original pdfs (or if not pdf, the applicable graphic source format) used to print unvoted paper ballots for your election.  This request encompasses ballots for all precincts, styles, voting methods (in-person, by mail/drop-off, emergency, UOCAVA, provisional, replacement) and any others such as specially printed test ballots but only if they in any way have different content. I do not request duplicate sets of pdfs used for e.g. replacement and mail if they are identical. Note however that ballot on demand source files may be different and if so, I am including them in my request.
  
 Note that this is not a request for a pdf created from a scan of the paper form of the ballot - this is for the source file used to create the ballots. Please advise me if the vendor requires a multipage pdf with a page for each instance of printed ballot or for any other reason the data capacity of my records request is too large for email fulfillment.

Although I am not required to explain my intention, I find it beneficial and good manners to do so.  I will be using the pdfs of the unvoted ballots as part of a technical process to independently audit the election and perform an evaluation of the voting system using scans produced by the voting system to be obtained under CORA after certification as referred to below. Please discuss with me any concerns you have over the possibility that these pdfs could be used to create ballots that would be returned in your election or any other similar concerns that would present obstacles to fulfillment. I am prepared to take create an assurance that unexpected ballots will not result including by delaying the fulfillment of the request until Nov. 4.

This email also serves as a presumably helpful advance notice of my intention to CORA request 1) electronic scans produced by the voting equipment used in the pilot election of all the tabulated ballots returned in the 2015 Coordinated election  as soon as C.R.S. 24-72-205.5 allows. I will also be requesting 2) the "cast vote records" or other record of vote patterns recorded per ballot by the voting system. I will also be asking for 3) a newly created electronic color scan copy of each ballot that was duplicated prior to scanning for tabulation.

For requests 1) and 2) these files should be produced in the format and organization defined by the voting system. Only the fulfillment of request 3) will be the result of a scan not performed originally for tabulation. For all three requests I request no reformatting be done other than minimal redaction by adding a black area to an otherwise original graphic file to cover the privacy impinging mark(s) if any. I also ask that each instance of redaction be logged in a note to accompany the records fulfillment.   Note that with this advance notice I hope that you will find a way to most efficiently and inexpensively prepare electronic file copies of the ballots for fulfillment per C.R.S. 24-72-205.5.

That law does have a requirement for potential redaction of identifying marks. I am hoping you will make plans for accomplishing any research regarding identifying marks in the most efficient manner such as during election judge review of the incoming ballots and will discuss any associated costs with me as soon as possible. I am ready to discuss means to use tools in C.R.S. 24-72-205.5 to avoid privacy problems with styles that result in instances of less than 10 alike in the election.

Please respond with an estimate of the amount of any fees that  might be charged in the fulfillment of this future request.

If my request or any portion of it (including the prospective future request) will be denied or fulfilled only in part, please advise and cite the applicable law. If fulfillment will be delayed for any reason, please explain.

Thank you very much.

Harvie Branscomb

***

Date: 10/19/2015 4:42 PM

Dear Mr. Branscomb,

This email responds to your Colorado Open Records Request received by email on Wednesday, October 14, 2015 2:49 PM.
  1. You have requested “electronic copies of the original pdfs (or if not pdf, the applicable graphic source format) used to print unvoted paper ballots for your election.  This request encompasses ballots for all precincts, styles, voting methods (in-person, by mail/drop-off, emergency, UOCAVA, provisional, replacement) and any others such as specially printed test ballots but only if they in any way have different content.”  You have stated that this request is “not a request for a pdf created from a scan of the paper form of the ballot - this is for the source file used to create the ballots.”
As you are aware, the November 3, 2015 Coordinated Election has begun and electors in the City and County of Denver are returning ballots to be counted.   In my opinion, disclosure of the pdf source documents used to print unvoted ballots would do substantial injury to the public interest and jeopardize the integrity of the election even if there is a possibility that said record might otherwise be available to public inspection.  Ballots have been sent to Denver electors and electors are returning their ballots.  Although there are various checks and balances in the election process, access to these records during the election provides an opportunity for a person to print and disseminate copies of ballots that appear to be official thereby causing voter confusion and diminishing trust in the election process.

In your email, you recognized the risk of injury to the public interest and the integrity of the election when you referred to the “possibility that these pdfs could be used to create ballots that would be returned in your election or any other similar concerns that would present obstacles to fulfillment.”   As you acknowledged, it would cause substantial injury to the integrity of the election to disclose the actual source files used to create and print ballots while the election is being conducted.

In addition, I have exercised reasonable diligence and made a reasonable inquiry to determine whether disclosure is prohibited and I am in good faith unable to determine if disclosure of the pdf documents is prohibited under the Uniform Election Code of 1992, C.R.S. 1-1-101, et seq., and the Election Rules of the Colorado Secretary of State.   Under Election Rules 1.1.21; and 11.1, the documents you have requested are election set up records that must be securely stored at all times.  Only those persons deputized by and given prior authorization from the Clerk, and who have passed a criminal background check, are authorized to prepare, maintain, and have access to the pdf files you have requested.  Thus, based on my analysis, I believe the pdf documents are restricted documents under Colorado Election Rules 1.1.21 and 11.1.

In order to maintain the integrity of the election currently being conducted, I will make the requested pdf documents available to you after November 12, 2015, which is the last day that a ballot or other required information concerning a ballot can be received for counting.  According to Colorado state law, I am required to continue accepting ballots cast by military and overseas electors until and including November 12, 2015, in order to count such ballots. (See, 1-8.3-113(2); 1-1-106(4), Colorado Revised Statutes)   I am also required to allow an elector an opportunity to cure a signature discrepancy, provide a missing signature, or provide a missing ID for his or her mail or provisional ballot to be counted until November 12, 2015.  (See, 1-7.5-107(3.5)(d), 1-7.5-107.3(2)(a), 1-8.5-105(3)(a), Colorado Revised Statutes)   We have estimated a cost of $10.00 to retrieve the records, provide them on a flash drive, and mail them to you.

Alternatively, if you wish to inspect the pdf documents before November 13, 2015, I will make available a watermarked/redacted version of the records without set-up coding each containing a statement that the document is not an official ballot.  We have estimated a cost of $50.00 to retrieve the records, apply the watermark to each document, transfer the document to a flash drive, and mail them to you.

Please let me know in writing if you are in agreement with either of these options.
  1. You have also provided “advance notice of my intention to CORA request 1) electronic scans produced by the voting equipment used in the pilot election of all the tabulated ballots returned in the 2015 Coordinated election as soon as C.R.S. 24-72-205.5 allows. I will also be requesting 2) the "cast vote records" or other record of vote patterns recorded per ballot by the voting system. I will also be asking for 3) a newly created electronic color scan copy of each ballot that was duplicated prior to scanning for tabulation.”No response is required at this time since the request you intend to seek at a later time are not in existence as of the date of this email.  I appreciate the advance notice of your intentions.  Please resubmit your CORA request to inspect tabulated ballots and cast vote records in accordance with the time frames allowed for such inspection as set forth in C.R.S. 24-72-205.5.
Sincerely,

Amber McReynolds  |  Director of Elections
 Denver Elections Division

***

Date: 10/30/2015 5:10 PM

Thank you for your response to my CORA request. I have inserted my comments inline with DC indicating your text and HB indicating mine:
DC> 1.      You have requested “electronic copies of the original pdfs (or if not pdf, the applicable graphic source format) used to print unvoted paper ballots for your election.  This request encompasses ballots for all precincts, styles, voting methods (in-person, by mail/drop-off, emergency, UOCAVA, provisional, replacement) and any others such as specially printed test ballots but only if they in any way have different content.”  You have stated that this request is “not a request for a pdf created from a scan of the paper form of the ballot - this is for the source file used to create the ballots.”As you are aware, the November 3, 2015 Coordinated Election has begun and electors in the City and County of Denver are returning ballots to be counted.   In my opinion, disclosure of the pdf source documents used to print unvoted ballots would do substantial injury to the public interest and jeopardize the integrity of the election even if there is a possibility that said record might otherwise be available to public inspection.  Ballots have been sent to Denver electors and electors are returning their ballots.  Although there are various checks and balances in the election process, access to these records during the election provides an opportunity for a person to print and disseminate copies of ballots that appear to be official thereby causing voter confusion and diminishing trust in the election process.

In your email, you recognized the risk of injury to the public interest and the integrity of the election when you referred to the “possibility that these pdfs could be used to create ballots that would be returned in your election or any other similar concerns that would present obstacles to fulfillment.”   As you acknowledged, it would cause substantial injury to the integrity of the election to disclose the actual source files used to create and print ballots while the election is being conducted.

In addition, I have exercised reasonable diligence and made a reasonable inquiry to determine whether disclosure is prohibited and I am in good faith unable to determine if disclosure of the pdf documents is prohibited under the Uniform Election Code of 1992, C.R.S. 1-1-101, et seq., and the Election Rules of the Colorado Secretary of State.   Under Election Rules 1.1.21; and 11.1, the documents you have requested are election set up records that must be securely stored at all times.  Only those persons deputized by and given prior authorization from the Clerk, and who have passed a criminal background check, are authorized to prepare, maintain, and have access to the pdf files you have requested.  Thus, based on my analysis, I believe the pdf documents are restricted documents under Colorado Election Rules 1.1.21 and 11.1.

In order to maintain the integrity of the election currently being conducted, I will make the requested pdf documents available to you after November 12, 2015, which is the last day that a ballot or other required information concerning a ballot can be received for counting.  According to Colorado state law, I am required to continue accepting ballots cast by military and overseas electors until and including November 12, 2015, in order to count such ballots. (See, 1-8.3-113(2); 1-1-106(4), Colorado Revised Statutes)   I am also required to allow an elector an opportunity to cure a signature discrepancy, provide a missing signature, or provide a missing ID for his or her mail or provisional ballot to be counted until November 12, 2015.  (See, 1-7.5-107(3.5)(d), 1-7.5-107.3(2)(a), 1-8.5-105(3)(a), Colorado Revised Statutes)   We have estimated a cost of $10.00 to retrieve the records, provide them on a flash drive, and mail them to you.

Alternatively, if you wish to inspect the pdf documents before November 13, 2015, I will make available a watermarked/redacted version of the records without set-up coding each containing a statement that the document is not an official ballot.  We have estimated a cost of $50.00 to retrieve the records, apply the watermark to each document, transfer the document to a flash drive, and mail them to you.

                Please let me know in writing if you are in agreement with either of these options.

HB> I will need the unredacted digital files for my evaluation of the voting system. So I choose to receive them on November 13 under your first scenario. I will forward $10 to you by check and because time is so short for system evaluation I ask you to send the flash drive by overnight economy fedex using my account number and address as follows:

Fedex acct. ...
  Address:
  Harvie Branscomb
 ...

DC> 2.      You have also provided “advance notice of my intention to CORA request 1) electronic scans produced by the voting equipment used in the pilot election of all the tabulated ballots returned in the 2015 Coordinated election as soon as C.R.S. 24-72-205.5 allows. I will also be requesting 2) the "cast vote records" or other record of vote patterns recorded per ballot by the voting system. I will also be asking for 3) a newly created electronic color scan copy of each ballot that was duplicated prior to scanning for tabulation.”

No response is required at this time since the request you intend to seek at a later time are not in existence as of the date of this email.  I appreciate the advance notice of your intentions.  Please resubmit your CORA request to inspect tabulated ballots and cast vote records in accordance with the time frames allowed for such inspection as set forth in C.R.S. 24-72-205.5.

HB> Thank you for your indication of ability and willingness to fulfill the request for voted ballots. CRS 24-72-204.5 does not require me to wait until certification to begin a request for CORA fulfillment of voted ballots (following which there are many opportunities for delays that would cause harm to the purposes of public access to public records). Many of the records are in your possession today. I am making that formal request now for purposes of fulfillment as of the earliest date  allowed by statute:

 This email serves as a Colorado Open Records Request for electronic copies of 

 1) electronic scans produced by the voting equipment used in the pilot election of all the tabulated ballots returned in the 2015 Coordinated election  as soon as C.R.S. 24-72-205.5 allows. 

 2) the "cast vote records" or other record of vote patterns recorded per ballot by the voting system. 

 3) a newly created electronic color scan copy of each ballot that was duplicated prior to scanning for tabulation.

 For requests 1) and 2) these files should be produced in the format and organization defined by the voting system. Only the fulfillment of request 3) will be the result of a scan not performed originally for tabulation. 

 For all three requests I request no reformatting be done other than minimal redaction by adding a black area to an otherwise original graphic file to cover the privacy impinging mark(s) if any. I also ask that each instance of redaction be logged in a note to accompany the records fulfillment.   

 That law does have a requirement for potential redaction of identifying marks. I am hoping you will make plans for accomplishing any research regarding identifying marks in the most efficient manner such as during election judge review of the incoming ballots and will discuss any associated costs with me as soon as possible. I am ready to discuss means to use tools in C.R.S. 24-72-205.5 to avoid privacy problems with styles that result in instances of less than 10 alike in the election.This can be accomplished by adjustment of the detailed scope of my request or by sufficient redaction of identifying detail such as precinct.

 Please respond with an estimate of the amount of any fees that will be charged in the fulfillment of this future request. Please consider any means to make anonymization of the records efficient and cost effective. Denver county has experience with this as does Galois Inc.

 If my request or any portion of it will be denied or fulfilled only in part, please advise and cite the applicable law. If fulfillment will be delayed beyond the statutory release date for any reason, please explain.

 Please feel free to respond to this CORA request on Nov. 4 if not before election day.  I hope ample and unusual advance notice of this request has been provided via the office of SOS as well as from myself in conjunction with my request for unvoted ballot pdfs. It is my hope that this will lead to an expeditious and relatively painless effort to reply in spite of the difficult activities you are undertaking as part of the election that is unavoidably associated with this CORA request.

 Thank you very much.

 Harvie Branscomb

***

Date: 11/4/2015 1:59 PM

Dear Mr. Branscomb,

This is a response to your CORA request received in our office on Friday, October 30, 2015.
  1. “Electronic copies of the original pdfs (or if not pdf, the applicable graphic source format) used to print unvoted paper ballots for your election.”
Upon receipt of your check for $10.00, the records will be retrieved, prepared, and sent to you.   We will make one attempt to send the flash drive via FedEx using the information you provided, however, if it is unsuccessful, we will send the flash drive via US. Mail to the California address listed below.   These records will be mailed on November 13 to:

Fedex acct. ...
 Address:
 Harvie Branscomb
 

...
  1. Subsequently you have requested the following:
1) electronic scans produced by the voting equipment used in the pilot election of all the tabulated ballots returned in the 2015 Coordinated election  as soon as C.R.S. 24-72-205.5 allows.

2) the "cast vote records" or other record of vote patterns recorded per ballot by the voting system.

3) a newly created electronic color scan copy of each ballot that was duplicated prior to scanning for tabulation.

In my email to you on October 19, 2015, I acknowledged receipt of your intent to submit a CORA request under 24-72-204.5.   However, I did not provide any indication as to my actual response to such a CORA request since the CORA request itself had not actually been made.

Request No. 1 regarding Electronic Scans:

Under CORA, voted ballots are subject to inspection only to the extent specified in C.R.S. § 24-72-205.5.  The Clerk, as the custodian of voted ballots, must protect the integrity of the election process by protecting voter privacy and preserving secrecy in voting in accordance with section 8 of article VII of the Colorado constitution.   C.R.S. § 24-72-205.5(1)(a), (4)(a)-(b).    Thus, the Clerk must ensure that the ballots requested cannot be traced to the individuals who cast them.    C.R.S. § 24-72-205.5(1)(a), (4)(a)-(b).   Further, C.R.S. § 24-72-204.5(3)(a) states that a designated election official shall not fulfill a request to inspected voted ballots under C.R.S. § 24-72-205.5 during the period commencing with the 45th day before election day and ending on the date by which ballot results are certified or a recount has been completed whichever date is later (the “Stay Period”).

As of today, there are 123,130 scanned ballot images of ballots that were either delivered to the Denver Elections Division or cast in-person for the November 3, 2015 Coordinated Election.   These images are in “.tif” file format and include data associated with the individual ballot scan responsive to your request.   This number may increase as additional ballots are returned to my office in accordance with procedures under state law.

In order to ensure that an  electronic image of a ballot cannot be traced to the individual who cast it, we must conduct a manual inspection of each ballot image for handwritten annotations, signatures, or other identifying marks, C.R.S. § 24-72-205.5(1)(a).  In addition, in accordance with C.R.S. § 24-72-205.5(4)(b)(III), ballots from military and overseas electors and ballots cast using the imagecastX potentially contain a small number of ballots and by using the publicly available voter file, you may be able to identify an individual voter’s ballot.  Further, the ballot images must also be manually inspected to determine if a ballot, or any portion thereof, is identical in printed form, considering a combination of the election contests at issue and precinct coding, to only nine or fewer ballots, or comparable portions thereof, among all ballots used in the same election.  C.R.S. § 24-72-205.5 (4)(b)(III).   Any such ballot, or any requested portion thereof, that is identical in printed form to nine or fewer ballots, or comparable portions thereof, used in the same election will not be made available. C.R.S. § 24-72-205.5 (4)(b)(III).  As a result of these considerations, we will redact the precinct information as appropriate so that we can provide the files while protecting voter anonymity.

Request No. 2 "cast vote records or other record of vote patterns recorded per ballot by the voting system”

These records will be made available to you with the ballots as requested in No. 1.
 Request No. 3 "a newly created electronic color scan copy of each ballot that was duplicated prior to scanning for tabulation.
 

Under our new system, duplication of ballots prior to tabulation is rare.  However, we will scan the original image of each ballot image that was not scanned for tabulation in its original format.  We will provide a combined file with these records to you to fulfill your request.

We are working on an estimate of the actual cost to fulfill your request after the Stay Period.  We are considering potential software solutions that may make the review process more efficient and thus would like more time to give you an accurate estimate.  This amount will include actual costs for my office to research, retrieve, and manually inspect the ballots you have requested.  C.R.S. § 24-72-205.5 (4)(b)(VI).   Upon your agreement to pay this cost, we will complete the research, retrieval, and manual inspection of the records you have requested.  If it takes less time than we have estimated, you will receive a refund.  The amount includes the media that will hold the images and records.

Sincerely,

Amber McReynolds  |  Director of Elections
 Denver Elections Division

***

Date: 11/21/2015 1:20 PM

Hi Harvie,
I hope you are well.  As promised, I have determined a final amount for the cost of the ballot images you have requested.  We will place the images requested with appropriate redactions on a USB for you.  The cost of this will be $25.00.  I believe you wanted us to send this, upon completion, to the California address you indicated previously using your FedEx account.  Please confirm this is still how you would like to proceed.

Best,

Amber McReynolds

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