Addressing the response to a public record request for the cast vote record part 1

On the 28th of August this site published a suggested method for submitting a public records request for the cast votes record from the Los Angeles County Registrar Recorder/County Clerk.  Following my own suggestion your Irascible Correspondent submitted such a request, along with at least one other person.  The County has responded to that other person, detailed below with my commentary; that will constitute the first part of this series.  In the second of the series I hope to propose a suggested draft for how to reply to the County.

Your Irascible Correspondent must at this point lay out his qualifications for what is about to be said.  I was a Senior Business Automation Analyst (basically a glorfiied Systems Administrator) for Bank of America’s Small Business Banking division from May 1999 to December 2002, when the US based support team for Small Business Banking was laid off and our jobs sent to India.  My primary duties involved technical support levels 1 and 2 for over 300 users, server maintenance and upgrade, Token ring and ethernet network maintenance and troubleshooting, database maintenance and backup, maintaining security on all those user’s workstations, developing and testing business continuity plans, rigorously testing and implementing software upgrades, migrations and installations.  BofA was kind of behind the times as far as operating systems and software was concerned.  They were still running on Windows NT 4.0 and were just upgrading to Windows 2000 We were running Microsoft SQLServer 6.5 on Compaq servers with RAID 5 storage onsite and another RAID 5 array offsite.  So when somebody tries to snow me, as the County is, I know it.

Now to the County’s reply:

This letter responds to your California Public Records Act request, submitted to the Los Angeles
County Registrar–Recorder/County Clerk (“County”) on August 27, 2022. Specifically, you
requested the following information pertaining to the November 3, 2020 General Election and
the June 7, 2022 Statewide Direct Primary Election:

“PART 1: I am requesting a text, comma, or tab delimited file, or a text–based report, listing,
in the sequence processed by the county, every ballot, its sequential ID, its timestamp, its
method of voting (for example: in–person, mail–in, provisional, absentee, “other”, etc. – any
and all ballots that were tabulated as part of the 2020 General Election), the specific votes
contained for all races, and the batch ID and tabulator ID. Should any fields not be
available, please include the fields which are.

To be clear, I am NOT requesting a summary report of votes, I am requesting a per–ballot
report. This set of information is sometimes known as a “Cast Vote Record” (CVR), “ballot
log”, or a “summary of ballots”. If the data exists as multiple files or reports, for instance
by batch or by precinct, you do not need to aggregate them, please send the individual
files. I specifically do NOT want any information that identifies a specific voter, and I
guarantee and stipulate that this information will not be used for that purpose.

PART 2: I am also requesting the Ballot Manifest Report (also known as the Tabulator
Batch Report) for all ballots included in the tabulation of the results of the Nov. 3, 2020
general election. This report should include the information that specifies the method by
which each ballot was cast. (ie: in–person, by–mail, provisional, absentee, etc.)

PART 3: I am also requesting the ballot images, both pre image and the post image scan
for all mail in and absentee ballots cast.”

So far so good, the County has been quoting the request letter and will now address the letter’s points.

Under the Public Records Act, the County of Los Angeles (County) has a duty to disclose records
to the public to the extent the County understands the request, responsive records exist and can
be located, and the information contained in the responsive records are not subject to, in whole
or in part, legal exemptions from disclosure. However, the Public Records Act does not require
the County to answer questions or to create a record that does not exist at the time of the request.
(See Gov. Code § 6252(e); Haymie v. Superior Court (2001) 26 Cal.4th 1061, 1075.)

Again, so far so good.  Nobody is asking them to submit records which do not exist or need to be created specifically to comply with the request.  Now begins the mish-mash of language designed to manipulate, misdirect, misinform, evade and outright lie.  The purpose of this language is to put up a barrier of confusion and plausible deniability in order to justify partial, extraneous and erroneous compliance with the goal of providing a legally justifiable partial or crippling non compliance.  They have no intention of being transparent or cooperative as they must protect against potential exposure.

Regarding Part 1 of your request, “I am requesting a text, comma, or tab delimited file, or a text–
based report, listing, in the sequence processed by the county, every ballot, its sequential ID, its
timestamp, its method of voting (for example: in–person, mail–in, provisional, absentee, “other”,
etc. – any and all ballots that were tabulated as part of the 2020 General Election), the specific
votes contained for all races, and the batch ID and tabulator ID,” the request seeks information
that requires data compilation, extraction, or programming to produce, which you are required to
pay for pursuant to Government Code section 6253.9(b).

Of course the request requires “compilation, extraction, or programming to produce.”  The data resides in a relational database, the County uses Oracle, which is an excellent platform.  It is a relational database that uses the powerful SQL language.  The user submits an SQL query and the database produces the results in the form of a table similar to an Excel spreadsheet.  That table can then be converted into a report using an associated report writer.  But we are not asking for that, simply export the table to a comma or TAB delimited text file and save it.  Rise and repeat for each item.  Given the power of the computers (called servers) all requests could be complied with in a matter of two or three hours at most.

“which you are required to pay for pursuant to Government Code section 6253.9(b),”  which reads as follows:

Sec. 6253.9 (a) Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format shall make that information available in an electronic format when requested by any person and, when applicable, shall comply with the following:
(1) The agency shall make the information available in any electronic format in which it holds the information.
(2)Each agency shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.
(b) Notwithstanding paragraph (2) of subdivision (a), the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies:
(1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals.
(2) The request would require data compilation, extraction, or programming to produce the record.

So the record exist in electronic format, and we can be assured that they are certainly reported to members of the Registrar Reorder/County Clerk staff at various times.

While the County of Los Angeles Registrar–Recorder/County Clerk (“County”) maintains the
requested data for County elections, the data does not exist in a format that can be produced as
requested, because the requested format is not one that exists for the County’s own use or for
provision to other agencies. The County’s non–relational database system stores the requested
data across many areas, in multiple layers of computer code, with entries relating to each ballot
spread across multiple log files. Therefore, it would require data compilation, extraction, and/or
programming to provide you with records in the requested format, and you are required for pay
the costs of such programming and computer services to produce the records.

This is pure word salad, is false, and is intended to confuse by conflating one thing with another and using narrow definitions to evade the sense of the request.  They have already admitted that they have the records.  Now they sing us a sad song about how hard it is to present the data because it is not in a format used by the County.  This is false.  Were it otherwise they would never be able to produce the reports commonly made to the public following an election and to the politicians that depend on this data to discover the results of their own races.

Yes, the relational database is connected to and runs on non-relational database systems, such as servers, workstations, printers, scanners, RAID-5 memory arrays, server farms and on the cloud.  Yes, the data is stored in a large number of separate tables within the database, be it Oracle or SQLServer or MariaDB (some databases on the market, there are others) or whatever.  Each table contains a specific set of data such as log files, image files, user files, each of which is unreadable without the appropriate program.  So what they are telling us is technically true but utterly irrelevant.  They want to make it sound complicated and unwieldy and hard.  It is complicated because there are many related pieces.  It is not hard or unwieldy because the database system is an integrated whole designed to be run from a keyboard using SQL commands.

Unless they are utterly incompetent, and in this they are not, all the programming is done, all the data automatically entered, checked and verified, all the necessary SQL commands encoded and stored, all the hardware and software updated, all anti-virus software current and all the backups current.  Everything we ask for is already in the system, it just needs a competent operator, they have competent operators, to run the commands, export the results and save the resulting file.

In point of fact the systems put out all these reports natively, that is automatically as the way the system functions, as the systems take in the votes.  They auto-genereate the reports as this is exactly HOW the County reports them to the State.

Moreover, the data requested may contain information that is exempt from disclosure under law,
and such information will not be disclosed in any custom report. Government Code section
6254.19 exempts records from disclosure if they would reveal vulnerabilities to, or otherwise
increase the potential for an attack on an information technology system. Government Code
section 6254.9 exempts computer software developed by a state or local agency from disclosure.
Government Code section 6255(a) allows an agency to withhold any records or portions of
records by demonstrating that “the public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure of the record.” (CBS Broadcasting, Inc. v.
Superior Court (2001) 91 Ca1.App.4th 892; Times Mirror Co. v. Superior Court (1991) 53 Ca1.3d
1325; Gov. Code § 6255(a).) As the legislature found in creating these exemptions, the public
interest is not served if the disclosure of such information could jeopardize the voting system or
create a security risk to the County. Based on the foregoing, records containing information that
would increase the potential for an attack on the County’s voting system or reveal the County
voting system’s computer software are exempt from disclosure and cannot be disclosed. (Cal.
Const., art. I; Gov. Code § 6255.)

More misinformation and misdirection.  One of those Government codes they cite doesn’t exist, see if you can figure out which one.  Do your lookups here.  This whole section is bafflegab.

It is not possible for the data result from any of these data requests to reveal anything whatever about the systems than produced them much less any potential security flaws in those systems, that is pure fantasy.

We are not requesting the disclosure of any computer software whether developed by the County or anyone else. Irrelevant.

None of the data requested poses a risk to the public interest.  Irrelevant.

None of the data requested poses a security risk to voting system or the County.  Irrelevant.

Since the data requested poses no imaginable threat to the County’s software, hardware or other systems there can be no legitimate reason for denying the request.

In the ordinary course of election administration, the County produces the following reports after
each election and posts them to its website at https://lavote.gov/home/voting–elections/current–
elections/election–results/past–election–results:
• Statement of Votes Cast
• Statement of Votes Cast by District
• Precinct Bulletins
• Statement of Votes Cast Excel Format
• Votes Cast by Community

Indeed the data is there.  But we aren’t looking for their massaged data, we want the raw data.

All other reports requested outside of what is provided by the County through the ordinary course
of election administration and would require data compilation, extraction, or programming to
produce is considered a custom report request. The total cost to create the reports you requested
will be $4,992.00 for the first report, and $2,080.00 for the second report.

Since what we are asking for is already part of their automatic reporting to the State this fee is ridiculous.  I’d suggest putting about $1,000 in an escrow account and have the County send an itemized invoice for payment.  There is no reason why we should be paying for about 100 hours for a programmer to reproduce what the taxpayers have paid for and already exists.  We should pay for the Database Administrator’s time to run the SOL queries and save them on a thumb drive, that’s fair, and that’s it.

Based on the information provided in Part 2 of your request and to the extent the County
understands your request, “Ballot Manifest Report (also known as the Tabulator Batch Report)
for all ballots included the tabulation of the results of the Nov. 3, 2020 general election. This report
should include the information that specifies the method by which each ballot was cast. (i.e.: in–
person, by–mail, provisional, absentee, etc.),” the County has conducted a reasonably diligent
search and located records responsive to your request.

The above referenced responsive record is produced from the County’s VSAP Tally system and
provides the following information:
• Ballot card ID – ID number associated with each ballot card (each ballot may contain
multiple ballot cards)
• Type – Type of ballot (e.g., in–person using ballot marking device, vote by mail ballot)
• Unit – Consolidated Precinct ID
• Key card – ballot card used for recordation in the Statement of Votes Cast report
(true=yes, false=no)
• Time stamp – Time ballot card was scanned

Due to the amount of data in the report, we recommend using TextPad to review it. You may
download the file here:dropbox_ballotmanifestreport.

Regarding PART 3 of your request, I am also requesting the ballot images, both pre image and
the post image scan for all mail in and absentee ballots cast,” based on the information provided
in your request, the County has conducted a reasonably diligent search and determined there are
records responsive to your request. However, the records identified are exempt from disclosure.
Government Code section 6254(k) allows an agency to withhold records where disclosure is
exempted or prohibited pursuant to Federal or State law. (See Gov. Code, §§ 6254(k) and
6255(a); Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325; Rogers v. Superior Court
(1993) 19 Cal.App.4th 469.) In this instance, ballot images showing voters’ ballot selections are
exempt from disclosure under state law. (See Cal. Const., art. II, § 7; Gov. Code, § 6254(k); Elec.
Code. §§ 2300(a)(4), 15370, 17301 et seq.; Citizens Oversight, Inc. v. Vu (2019) 35 Cal.App.5th
612.)

California Constitution, art. II, § 7 states: “Voting shall be secret.”  This is misdirection.  By “secret” here is meant that the identity of the voter shall not attach to the ballot.  Unless the County is asserting that, contrary to Federal and State law the ballot contains identifying information about the voter who cast it.  Does the County really want to make that assertion?  I think not.

California Government Code 6254 (k) states: “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”  The County has not established that the disclosure of these records is in any way prohibited.

California Election code 2300(a)(4) states: “You have the right to cast a secret ballot free from intimidation.”  See California Constitution Art.II Sec 7 above.

California Election Code 15370 states: “After ballots are counted and sealed, the elections official may not open any ballots nor permit any ballots to be opened except as permitted in Sections 15303 and 15304, or in the event of a recount.”  We are not asking for the actual ballot, we asking for image of the ballot as it was initially scanned into the voting software and the image of the ballot as it was scanned and entered into the record after adjudication.  Does not apply.

California Election Code 17301 (click to view) Does not apply as we are not seeking the physical materials, just the images as stated above.

If you wish to proceed with the custom report for Part 1 of your request, please indicate so in
writing. You may send the written confirmation and payment to the following address:
County of Los Angeles
Registrar–Recorder/County Clerk
Executive Office, Room 7001
Attn: Julane Whalen
12400 Imperial Highway
Norwalk, CA 90650
Please make the check payable to Registrar–Recorder/County Clerk

Nobody should be taken in by this con.

This concludes my review of the relevant portions of the County’s response to our Public Record Request.  In this article I have provided a basis for rebutting the response to the County’s response to our Pubic Records Request.  Composing such a rebuttal will come later.  Any legal eagles out there who want to help with the effort reply in the comments.