IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON TIMOTHY WHITE, Appellant,

v. SKAGIT COUNTY and ISLAND COUNTY, Respondents. No. 72028-7-1 DIVISION ONE

PUBLISHED OPINION FILED: July 13, 2015



### Becker, J. — Skagit and Island Counties denied a PublicRecords Act 

### request for copies of votedballots. In view ofWashington'sconstitutional and statutoryprovisions protecting ballot secrecy, we hold the requested records are exempt. 

### The 2013 general election was held on November5. The next day, 

### AppellantTimothyWhite made a request of Skagit and Island Counties under the Public Records Act, chapter42.56 RCW. He asked for "copies ofelectronic or 

### digital imagefiles" ofall pretabulated ballotsreceived, cast, voted, or otherwise used in the election.1 Both counties denied the request.

1White sent the same Public Records Act requestto all counties in Washington State.No. 72028-7-1/2 The Public Records Act requires that agencies make all public records available for inspection and copying, unless the record falls within the specific exemptions of RCW 42.56.070(6), chapter41.56 RCW, or an "other statute" that exempts or prohibits disclosure of specific information or records. RCW 42.56.070(1). The issue inthis case is whether copies ofballots are exempt under an "other statute." An exemption may be found in an "other statute" even if it is not stated explicitly. RCW 42.56.070(1); Progressive Animal Welfare Soc'v v. Univ. ofWash., 125 Wn.2d 243, 263-64, 884 P.2d 592 (1994) (PAWS) (antiharassment statute was an "other statute" exempting the names ofanimal researchers from production pursuant to a request for a grant proposal even though the statute did not explicitly state the names were exempt). The dispute came before the Snohomish County Superior Court on a 

### show cause hearing on February 13, 2014. The court considered declarations submitted by the parties and by the Secretary ofState. The court ruled that even though no statute states an explicitexemption forvoted ballots, they are exempt under various election statutes codified in Title 29A RCW: 

### The statutory scheme controlling ballots in RCW Chapter 29A is very long and complex and, therefore, how itexpressly exempts ballots from public records disclosure cannot be found in 

### just one quote fromone statute. However, taken as a whole, RCW Chapter 29A expressly exempts election ballots from disclosure as public records. 

### In a comprehensive memorandum decision, the superiorcourt observed that the 

### secrecy of a citizen's vote "isthe cornerstone of a free democratic government." "Given the numerous and unpredictable ways ballot disclosure could be used to 

### ascertain voters' identities, given the possibility ofhuman errorifwe rely onNo. 72028-7-1/3 

### people to individually redactthousands of ballots foridentifying information, given the constitutional requirementforabsolute secrecy, given the disruption to public confidence inelection results that could be caused by endless private reviews of 

### ballots," the court determined that the legislature did not intend to subjectballots

to the Public Records Act. White appeals. 

### Because the record consists ofdocumentary evidence only, this court stands in the same position as the trial court. Mitchell v. Dep't of Corr.. 164 Wn. App. 597, 602, 277 P.3d 670 (2011). Our review is de novo. Fisher Broad.- 

### Seattle TV. LLC v. City ofSeattle. 180 Wn.2d 515, 522, 326 P.3d 688 (2014).
BALLOT SECRECY The Washington Constitution requires the legislature to provide for a method of voting thatwill "secure to every elector absolute secrecy inpreparing and depositing his ballot."
BallotAll elections shall be by ballot. The legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot. Wash. Const, art. 6, § 6. The constitutional mandate for a secret ballot is implemented by statutes codified in Title 29A RCW. For example, all ballots, when received intheir return envelopes, "must be placed in secure locations from the time ofdelivery to the county auditor until their subsequent opening. After opening the return envelopes, the county canvassing board shall place all ofthe ballots in secure storage until processing." RCW 29A.40.110(2). Immediately after tabulation, i.e.No. 72028-7-1/4 

### counting, all ballots must be sealed incontainers from which they may be removed only in narrowly specified circumstances. RCW 29A.60.110. The record contains declarations by county employees explaining how ballots are processed. After signatures and postmarks are verified and the ballots have been removed and separated from the envelopes, ballots are manually inspected for damage, write-in votes, and incorrect or incomplete 

### marks. Damaged and write-in ballots may be duplicated at this point "only ifthe intent ofthe voter's marks on the ballot is clear and the electronic voting 

### equipment might not otherwise properly tallythe ballot to reflectthe intent of the
voter." RCW29A.60.125. 

### Digital images of all ballots do exist for a shorttime when ballots are scanned into the first of two computers. The images are then converted into a 

### proprietary format. Once this conversion has taken place, the images do not exist as separate image files that can be exported or copied. The data is transferred to the second computerfortabulation. The information transferred does not contain images. Itcontains binary code that instructs the second 

### computer program how to convertthe marks into vote counts. The second computer runs a program thattabulates the votes. Scanning and tabulation of votes continues as necessary untilthe election is certified. While this process occurs, all ballots—including originals and duplicates—are maintained in a

secure area from the moment they are deposited or received untilthey are eventually destroyed.No. 72028-7-1/5 White maintains that he is entitled to copies ofthe digital image files of all ballots pretabulation, that is, as they existed before the images are converted into the data that is transferred to the second computerfor tabulation. He requested thatthe copies be transmitted to him in a format readable on his home computer. The counties resistWhite's request in part to protect ballot secrecy and in part because ofpractical considerations. As far as practicality is concerned, the counties state thattheir currenttechnology does not automatically store image files ofballots in a format readable on a home computer. They explain that it would take so much time to "screen print" each ballot as itgoes through the

scannerthat itwould interfere with the timely administration ofthe election and
certification ofthe results. 

### Inresolving this dispute, we will assume that itmay be technologically feasible—ifnot now, then perhaps inthe future—to make copies ofelectronic or 

### digitalimage files of allpretabulated ballots without delaying the election results. Even so, the fundamental issue that must be addressed is whether ballot images



### are exempt as a matter of law from production underthe Public Records Act. 

### White argues thatthe image files he has requested are "election records," not "ballots." In his view, "each voter has only one ballot perelection, not many." 

### The paperballot on which the voter's choice is recorded is, according to White, 

### the only legal "ballot" as thatterm is used in Title 29A RCW. Copies and images ofballots, he contends, are unprotected by the statutes implementing the constitutional mandate for ballot secrecy.No. 72028-7-1/6
A statute lists four definitions of "ballot," to be chosen "as the context implies": (1) "Ballot" means, as the context implies, either: 

### (a) The issues and offices to be voted upon in a jurisdiction or portion of ajurisdiction at a particularprimary, general election, or special election; 

### (b) Afacsimile ofthe contents of a particular ballot whether printed on a paper ballot or ballot card or as part of a voting machine or voting device; 

### (c) A physical or electronic record ofthe choices of an individual voter in a particular primary, general election, or special election; or 

### (d) The physical document on which the voter's choices are to be recorded 

### RCW 29A.04.008(1). White's preferred definition—"The physical document on which the voter's choices are to be recorded"—is only one ofthe four definitions. RCW29A.04.008(1)(d). 

### InTitle 29A RCW, the legislature has gone intogreatdetail to ensure that 

### the process ofcollecting, counting, storing, and ultimately destroying ballots achieves the constitutional mandate for a secret ballot. The only statutory 

### provision for copying of ballots is found in RCW29A.60.125. The statute permits duplication "onlyifthe intent of the voter's marks on the ballot is clearand the 

### electronicvoting equipment might not otherwise properlytally the ballotto reflect the intent ofthe voter." Ballots must be duplicated by teams of two people, and 

### those people must record their actions inwriting to create and maintain an audit trail of the actions they take. RCW 29A.60.125. Originaland duplicate ballots must be sealed in secure storage at alltimes, "except during duplication, 

### inspection by the canvassing board, or tabulation." RCW29A.60.125.No. 72028-7-1/7 The statutes governing the handling and storage ofballots must be interpreted inthe context provided by the constitutional mandate for ballot secrecy. Inthat context, the term "ballot" does notjust referto the physical document on which the voter's choices are marked. Afacsimile, a physical copy,
an electronic record or image file ofthe physical document on which the voter places a mark isjust as much a "ballot" as the physical document itself. The statutes do not in any way suggest that the legislature meant to allow electronic or digital images ofballots to be more available for public inspection and copying than the original ballots. We interpretthe fourfold definition of "ballot" as reflecting legislative intent to define "ballot" as broadly as possible to fulfill the constitutional mandate for absolute secrecy. Releasing voted ballots for general public inspection would risk revealing the identity of individual voters. According to a declaration from the Elections Director in the Office ofthe Secretary ofState, voters sometimes place identifying marks on ballots contrary to voting instructions, for example by signing their names when making corrections or by writing comments abouttheir intent. Each time ballots are handled, there is the potential to misplace, damage, or lose them. And as the Elections Director explains, where there is low turnout in a small precinct, even a ballotdevoid of identifying marks can be tied backto a voter by comparing it with voters credited with returning ballots on particular
dates. Releasing copies or images presents the same risk of identification of voters as disclosure ofthe paper ballot. To hold that a copy or duplicate orNo. 72028-7-1/8 image file must be produced in response to a public records requestwould undermine the constitutional mandate for absolute secrecy of ballots. We conclude thatthe records White requests are "ballots" and they are subjectto the strict statutory regulation ofballot handling and storage. White argues thatthe statutory objective is to keep ballots secure, an 

### objective he believes can be metwhile still allowing copies to be produced upon request. White points out thatwhen there is an election contest, members ofthe public are allowed to serve as witnesses to the recounting of ballots. RCW 29A.64.030; RCW 29A.64.041(3); ch. 29A.68 RCW. InWhite's view, any member ofthe public should similarly be allowed to see scanned images of ballots before tabulation occurs. Such public access to the process, he argues, would ensure that the process ofjudging questionable or ambiguous ballots is not corrupted by tampering or distorted by incompetence. The amicus brief ofthe Secretary ofState succinctly describes the many provisions that already existfor citizen oversight ofelections: The political parties and other organizations can designate official observers whom the county auditors must allow to observe the 

### county's centralized counting centerwhere ballots are processed. RCW 29A.40.100; RCW 29A.60.170. Before an election, observers 

### and the public must be permitted to observe testing ofvote tallying 

### systems. RCW29A.12.130. Once ballot processing begins, counting centers must be open to the public. RCW 29A.60.170; WAC 434-261-010. Anyone can watch, but only employees and those specifically authorized by the county auditor can touch any ballot, ballot container, or vote tallying system. WAC 434-261-010. Political party observers can call for a random check of ballot counting equipment. RCW 29A.60.170(3). Observers may also 

### attend any recount, though they cannot handle ballots or record information about voters or votes. RCW 29A.64.041. When election officials question the validity of a challenged or provisional ballot, or when the intent ofthe voter cannot be

8No. 72028-7-1/9 resolved, the county canvassing board determines how the votes will be counted. RCW 29A.60.050, .140. Meetings ofthe county canvassing board are open public meetings. Notice must be published, and the board must make any rules available to the public. RCW 29A.60.140(5); WAC 434-262-025. Where canvassing boards display a ballot, they cover any marks that could destroy absolute ballot secrecy. See Const, art. VI, § 6. Finally, the county auditor must prepare and make publicly available detailed reports that precisely reconcile the number of ballots received, counted, and rejected, including specific accounting for various ballottypes (forexample, provisional ballots). RCW 29A.60.235. Public oversight ofballot processing and tabulation from start to finish, along with public reconciliation reports, allow a public check on all elections. 

### White's argumentthat even greatertransparency would promote public confidence inelections is a matter of policy forthe legislature to consider. It is 

### not supported bythe statutes as they are currently written. Allowing observers at various stages of ballot processing is fundamentally different from allowing every member ofthe public to inspect images ofevery ballot cast. Ballot boxes are not 

### to be opened norvotes recounted "on mere suspicion and on mere demand." Quiqlev v. Phelps. 74 Wash. 73, 81, 132 P. 738 (1913). The statutes that 

### regulate the handling of ballots do not manifest a legislative intent to facilitate public inspection ofvoted ballots. They manifest a legislative intentto protect 

### ballotsecrecy by maintaining the integrity of ballot processing and tabulation. The legislature's intentthatTitle 29A RCW serve as a comprehensive scheme restricting access to ballots is evidentfrom the fact thatthe legislature has specified that certain nonballot election records may be disclosed to the 

### public. See RCW29A.08.720, .770, .810, .835; RCW29A.40.130; RCW 

### 29A.60.070, .195, .235. As stated by the trial court, it would be superfluous for the legislature to single out specific types ofelection records as subjectto publicNo. 72028-7-1/10 disclosure unless the legislature viewed them as "exceptions in a statutory scheme that otherwise does not permit public disclosure." On occasion, courts inother states have allowed ballot images to be released to the public. White cites Marks v. Koch. 284 P.3d 118 (Colo. App. 2011). cert, dismissed as improvidentlv granted, No. 11SC816 (June 21, 2012), and Price v. Town ofFairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26. These cases
are not persuasive inour interpretation ofWashington law, as they were decided within different statutory frameworks and under differentfactual circumstances. We conclude that inWashington, all "ballots," including copies, are exempt from production underthe Public Records Act by Title 29A RCW—an "other statute." The exemption is necessary to protectthe "vitalgovernmental function" ofsecret ballot elections. RCW 42.56.210(2). Wejoin our colleagues in Division Two, who recently reached the same conclusion inWhite's similar appeal of a decision dismissing his action in Clark County. White v. Clark County. No. 46081-5-11 (Wash. Ct. App. June 30, 2015). BALLOTS NOT SUBJECT TO REDACTION "Ifthere is information in a public record that is exempt and redaction and disclosure is possible, then it is required." Ameriquest Mortg. Co. v. Office of Attorney Gen.. 177 Wn.2d 467, 487, 300 P.3d 799 (2013). White contends that redaction of potentially identifying marks from the electronic ordigital copies of 

### ballots will adequately serve the public interest in ballot secrecy protected by Title 29A RCW, while also accommodating the public interest in government transparency that is protected by the Public Records Act.

10No. 72028-7-1/11 The trial court ruled that redaction would not make disclosure possible: The constitutional mandate ofabsolute secrecy could not be 

### adequately accomplished byjust having government employees use their own discretion as to what is identifying on a ballot and 

### what needs redaction. Norare such employees even in a position 

### to accurately ascertain what information could or could not be used to identify a vote. Forexample, only two citizens voted at the voting machine in this election. Ifsomeone had staked out the machines and saw who voted on them, that information combined with copies 

### of the voting machine votes and metadata showing when they were cast could be used to identify who castthose votes. Likewise, 

### patterns in votingdata and howinformation can be used to identify voters may not be readilyapparentto an election employee who 

### may not have all election data before him at once or may not be a trained computerdata expert. Forexample, disclosing a fax cover sheetseparate from a fax vote would not seem problematic— 

### unless you realized onlyonefax vote was cast. Likewise, a ballot with a write-in vote for John Smith may not seem on its face to 

### identify who the voter is, unless you also knowJohn Smith is the voterwho castthe ballot. Election employees are not permitted to know who cast a ballot. The sheer number ofdocuments that would have to be 

### reviewed forredaction by falliblehumans without any rules or set 

### procedures and the numerous unpredictable ways the documents could reveal voter identityare such that mistakes would be made 

### absentclearprotective rules and setprocedures. Ifa ballothas a handwritten name is the chance someone will identify the 

### handwriting a sufficientreason for nondisclosure? Is disclosure of a write-in vote in the same name as the voter a violation ofabsolute 

### secrecy? Is a doodle on the ballotan identifying mark or not? A single mistake means the constitutional mandateforabsolute secrecy is violated. The Washington Constitution does notallow a scheme that provides for only substantial secrecy and that 

### occasionally allows the identity of voters casting ballots to be 

### mistakenly revealed. Unbridled and undirected discretion vested in numerous employees as to what is or is not too greata riskfor 

### violating secrecywould notcomply with the constitutional mandate. The Constitution requires absolute secrecy. Const, art. VI, § 6. 

### Ifthe legislature intended to allow publicdisclosure ofcopies of individual ballots it constitutionally would have crafted substantial 

### safeguards into thatprocess to assure absolute secrecy. RCW Chapter 29A provides noprocedures to protect the secrecy of the vote upon Publicdisclosure because publicdisclosure is not 

### contemplated. The lack of any such statutory safeguards indicates 

### the legislature had nointention thatballots be subject topublic

11No. 72028-7-1/12 disclosure. Compare, RCW 29A.60.230, providing a special protection for aggregating public election results when the number ofvoters is so low in a precinctthat separate reporting ofprecinct results may reveal identity). We agree with the trial court's reasoning. Redaction will not eliminate the risk that disclosing copies ofballots will reveal the identity of individual voters. Ballots are exempt in their entirety. ADEQUACY OF COUNTY RESPONSES 

### White argues that even ifthe ballot images are exempt, he is entitled to an award ofattorney fees and a daily penalty underthe Public Records Actbecause the counties' responses were insufficient. 

### Agency responses refusing inspection of any public record must include a statement ofthe specific exemption authorizing the withholding ofthe record and 

### "a brief explanation" of how the exemption applies to the record withheld. RCW 42.56.210(3). Inorderto satisfy the exemption requirements, the public agency 

### must identity the specified record, cite statutory exemptions, and briefly explain how the exemptions apply to the requested records. PAWS, 125 Wn.2d at 271 n.18. Claims ofexemption should contain enough details to (1) enable a 

### requestorto make a threshold decision aboutwhetherthe exemption was proper 

### and (2)enablejudicial review of the decision to withhold. Rental Hous. Ass'n of Puget Sound v. City ofPes Moines. 165 Wn.2d 525, 540-41, 199 P.3d 393 

### (2009); Sanders v. State, 169 Wn.2d 827, 845-49, 240 P.3d 120 (2010). 

### Skagit County provided White with a 2,111-page exemption log. The log listed each ballot withheld by its serial number and gave, for each, the same brief explanation.

12No. 72028-7-1/13 RCWs 29A.60.125, 29A.60.110 and WAC 434-261-045 (which are other laws preventing disclosure pursuant to RCW 42.56.070(1)) require ballots to remain in secure storage unless opened by a court or canvassing for a specific authorized purpose. White contends Skagit County's exemption log was unsatisfactory because it did not explain why the identified provisions for secure ballot storage applied to digital images and metadata. We disagree. The statute requires a "briefexplanation," not an explanatory brief. Skagit County's citation to two 

### statutes and a regulation enabled White, and ultimately the trial court, to assess 

### whether or not images of voted ballots are subjectto the same provisions for

secure storage as the originals. 

### Island County took a different approach. Instead ofan exemption log 

### identifying each ballot by serial number, Island County provided White with a single explanatory letter: 

### The records you requested are digital files and associated metadata and properties for ballots inthe November 5, 2013 

### general election. The county received one ballot by fax for this 

### election. Only two voters voted by voting machine. The County received 28 e-mailed ballots for this election as of November 6, 2013. And the number ofballots scanned so far for this election is 28,668. For each ofthe scanned ballots a corresponding digital image file exists for each side ofeach ballot; each ballot for this election is a 

### single page with two sides. There is metadata associated with each digital image file and with the e-mail ballots. Because the County is not permitted to access the digital files or emails for reasons described below, the County cannot list each 

### digital fileand e-mail at this time. Similarly, the County is unable to access the specific date each file or e-mail was created. Furthermore, any image files or metadata containing information 

### regarding the senderofthe ballot (such as the initials or signature ofthe voter handwritten on the ballot or metadata associated with

13No. 72028-7-1/14 

### the e-mails) is exemptfromdisclosure pursuantto RCW 29A.84.420. 1. Electronic or digital ballot image files. RCW 29A.40.110, RCW 29A.60.125 and RCW 29A.60.110 require that ballots be sealed in secure 

### storage at all times other than at those specific times and 

### forthose specificpurposes setforth by statute. See also WAC 434-261-045 and WAC 434-235-040(3). This 

### requirement applies to government employees and officials as well as to others. Consequently, making or 

### releasing copies of ballotswithoutan orderfrom a 

### Superior Court Judge would constitute a violation of these statutes. Pursuant to RCW 29A.04.008, this 

### applies to copies ofballots in anyformat, including copies ofdigital ballotimages or e-mailed ballots. Because a specific statute prohibits their release, these 

### records are beingwithheld in their entirety under RCW 

### 42.56.070(1), which references documents exemptfrom disclosure under other statutes. We will not release the 

### ballot images without a court orderas described by statute. 

### White argues thatIsland County's response violated the actby not 

### providing anexemption log atall. Wedisagree. Itis unnecessarytoprovide an exemption log repeating the sameexplanationthousands oftimes forthe same 

### type ofdocument. Island County's succinctand informative letterefficiently fulfilled the "briefexplanation" requirement. 

### Whitecontends both counties' responses should be deemed inadequate 

### and vague becausethey did notspecificallyrespond tothe sevencategories of ballotimages that he requested. Buteach countyidentified the same 

### exemptionsfor all ballots withheld. Itwould have been pointless to repeat the
same explanation for each ofthe seven categorieswithin theuniverse ofall
ballots.

14No. 72028-7-1/15 

### White contends Skagit County should be penalized forfailing to respond to his requestfor "the original metadata and Properties ofthe electronic or digital 

### files requested." White did not clarify this requestwhen asked. "Ifthe requestor fails to clarifythe request, the agency .. . need not respond to it." RCW
42.56.520. 

### White contends that a requestfor metadata need not be clarified because the term is well defined in O'Neill v. City ofShoreline, 170 Wn.2d 138, 143,147, 

### 240 P.3d 1149 (2010). He argues thatthe County was feigning ignorance about metadata inorderto avoid the duty to search forit. Inthe circumstances of this 

### case, we disagree. Itwas not unreasonable for the County to askWhite to 

### explain how or what part ofmetadata associated with the electronic ordigital files could be a public record, given the County's position that the electronic ordigital files themselves were exempt as ballots. As the trial court correctly concluded, 

### White's failure to respond to the requestforclarification excused the Countyfrom 

### trying to explain more specifically why the "metadata and Properties" were exempt. Because the counties did not violate the Public Records Act, there is no 

### basis to assess penalties or attorney fees againstthem. REQUEST TO CONSIDER ADDITIONAL EVIDENCE 

### White requests that this court considera declaration that Pierce County made ballotimages public inconnection with a past election. Under RAP9.11, this court may considerevidence that was notbefore the trial court if, among otherthings, additional proof of facts is "needed to fairly resolve the issues on

15No. 72028-7-1/16 review" and the additional evidence would probably change the decision being reviewed. White contends the evidence is necessary to show that "the kinds of records at issue inthis case are already made public inWashington, despite the 

### counties' claims to the contrary." The counties oppose the motion. They have submitted a declaration that the information posted by Pierce County in connection with a ranked choice or "instant runoff' election conducted in 2008 

### consisted only of a series ofnumbers containing information pulled from the ranked choice voting ballot cards by optical scan voting equipment. 

### The declaration submitted by White does not prove that Pierce County has


### ever posted digital images of ballots. Buteven ifthat had happened, evidence of the occurrence is not needed to fairly resolve the issue on review. Our decision 

### that copies of electronic and digital image files of ballots are exemptfrom the Public Records Act is rooted inthe constitutional mandate for ballot secrecy and the implementing statutes. MOTION TO STRIKE 

### Granting a motion by the counties, we strike sections B and C of White's

answerto the amicus brief filed byWashington Coalition forOpen Government. An answerto an amicus brief "should be limited solely to the new matters raised inthe briefofamicus curiae." RAP 10.3(f). Ratherthan answering new matters 

### raised by the Coalition, White responded to the counties' arguments made in their answer to the Coalition's brief. 

### The counties requestfees and costs under RAP 18.9 as a sanction for a frivolous appeal. White's appeal is not frivolous. We deny the request.

16No. 72028-7-1/17

Affirmed.

WE CONCUR:

17 

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