       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TIMOTHY WHITE,
                                                  No. 72028-7-1
                     Appellant,
                                                  DIVISION ONE
              v.



SKAGIT COUNTY and ISLAND                          PUBLISHED OPINION
COUNTY,
                                                  FILED: July 13, 2015
                     Respondents.


       Becker, J. — Skagit and Island Counties denied a Public Records Act

request for copies of voted ballots. In view of Washington's constitutional and

statutory provisions protecting ballot secrecy, we hold the requested records are

exempt.

       The 2013 general election was held on November 5. The next day,

Appellant Timothy White made a request of Skagit and Island Counties under the

Public Records Act, chapter 42.56 RCW. He asked for "copies of electronic or

digital image files" of all pretabulated ballots received, cast, voted, or otherwise

used in the election.1 Both counties denied the request.




     1 White sent the same Public Records Act request to 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), chapter 41.56 RCW, or an "other statute" that

exempts or prohibits disclosure of specific information or records. RCW

42.56.070(1). The issue in this case is whether copies of ballots 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. of Wash., 125 Wn.2d 243, 263-64, 884 P.2d 592 (1994) (PAWS)

(antiharassment statute was an "other statute" exempting the names of animal

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 of State. The court ruled that even

though no statute states an explicit exemption for voted 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 it expressly
       exempts ballots from public records disclosure cannot be found in
       just one quote from one statute. However, taken as a whole, RCW
       Chapter 29A expressly exempts election ballots from disclosure as
       public records.

In a comprehensive memorandum decision, the superior court observed that the

secrecy of a citizen's vote "is the cornerstone of a free democratic government."

"Given the numerous and unpredictable ways ballot disclosure could be used to

ascertain voters' identities, given the possibility of human error if we rely on
No. 72028-7-1/3


people to individually redact thousands of ballots for identifying information, given

the constitutional requirement for absolute secrecy, given the disruption to public

confidence in election results that could be caused by endless private reviews of

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

to the Public Records Act.

       White appeals.

       Because the record consists of documentary 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 of Seattle. 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 that will "secure to every elector absolute secrecy in preparing

and depositing his ballot."

       Ballot
              All 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 in their return

envelopes, "must be placed in secure locations from the time of delivery to the

county auditor until their subsequent opening. After opening the return

envelopes, the county canvassing board shall place all of the 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 in containers 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 of the voter's marks on the ballot is clear and the electronic voting

equipment might not otherwise properly tally the ballot to reflect the intent of the

voter." RCW29A.60.125.

       Digital images of all ballots do exist for a short time 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 computer for tabulation. The information transferred

does not contain images. It contains binary code that instructs the second

computer program how to convert the marks into vote counts. The second

computer runs a program that tabulates the votes. Scanning and tabulation of

votes continues as necessary until the 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 until they are

eventually destroyed.
No. 72028-7-1/5


       White maintains that he is entitled to copies of the 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 computer for tabulation. He requested

that the copies be transmitted to him in a format readable on his home computer.

       The counties resist White's request in part to protect ballot secrecy and in

part because of practical considerations. As far as practicality is concerned, the

counties state that their current technology does not automatically store image

files of ballots in a format readable on a home computer. They explain that it

would take so much time to "screen print" each ballot as it goes through the

scanner that it would interfere with the timely administration of the election and

certification of the results.

       In resolving this dispute, we will assume that it may be technologically

feasible—if not now, then perhaps in the future—to make copies of electronic or

digital image files of all pretabulated 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 under the Public Records Act.

       White argues that the image files he has requested are "election records,"

not "ballots." In his view, "each voter has only one ballot per election, not many."

The paper ballot on which the voter's choice is recorded is, according to White,

the only legal "ballot" as that term is used in Title 29A RCW. Copies and images

of ballots, 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 a jurisdiction at a particular primary, general election,
       or special election;
               (b) A facsimile of the 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 of the 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 of the four definitions.

RCW29A.04.008(1)(d).

       In Title 29A RCW, the legislature has gone into great detail to ensure that

the process of collecting, 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 RCW 29A.60.125. The statute permits

duplication "only if the intent of the voter's marks on the ballot is clear and the

electronic voting equipment might not otherwise properly tally the ballotto reflect

the intent of the voter." Ballots must be duplicated by teams of two people, and

those people must record their actions in writing to create and maintain an audit

trail of the actions they take. RCW 29A.60.125. Original and duplicate ballots

must be sealed in secure storage at all times, "except during duplication,

inspection by the canvassing board, or tabulation." RCW 29A.60.125.
No. 72028-7-1/7



         The statutes governing the handling and storage of ballots must be

interpreted in the context provided by the constitutional mandate for ballot

secrecy. In that context, the term "ballot" does not just refer to the physical

document on which the voter's choices are marked. A facsimile, a physical copy,

an electronic record or image file of the physical document on which the voter

places a mark is just 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 of ballots to be more available for public inspection and copying

than the original ballots. We interpret the 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 of the Secretary of State, voters sometimes place

identifying marks on ballots contrary to voting instructions, for example by signing

their names when making corrections or by writing comments about their 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 ballot devoid of identifying marks can be tied back to 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 of the paper ballot. To hold that a copy or duplicate or
No. 72028-7-1/8


image file must be produced in response to a public records request would

undermine the constitutional mandate for absolute secrecy of ballots. We

conclude that the records White requests are "ballots" and they are subject to the

strict statutory regulation of ballot handling and storage.

       White argues that the statutory objective is to keep ballots secure, an

objective he believes can be met while still allowing copies to be produced upon

request. White points out that when there is an election contest, members of the

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. In White's view, any

member of the 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 of judging questionable or ambiguous ballots is

not corrupted by tampering or distorted by incompetence.

       The amicus brief of the Secretary of State succinctly describes the many

provisions that already exist for citizen oversight of elections:

       The political parties and other organizations can designate official
       observers whom the county auditors must allow to observe the
       county's centralized counting center where ballots are processed.
       RCW 29A.40.100; RCW 29A.60.170. Before an election, observers
       and the public must be permitted to observe testing of vote 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 of the voter cannot be

                                           8
No. 72028-7-1/9


       resolved, the county canvassing board determines how the votes
       will be counted. RCW 29A.60.050, .140. Meetings of the 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 ballot types (for example, provisional
       ballots). RCW 29A.60.235. Public oversight of ballot processing
       and tabulation from start to finish, along with public reconciliation
       reports, allow a public check on all elections.

       White's argument that even greater transparency would promote public

confidence in elections is a matter of policy for the legislature to consider. It is

not supported by the statutes as they are currently written. Allowing observers at

various stages of ballot processing is fundamentally different from allowing every

member of the public to inspect images of every ballot cast. Ballot boxes are not

to be opened nor votes 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 of voted ballots. They manifest a legislative intent to protect

ballot secrecy by maintaining the integrity of ballot processing and tabulation.

       The legislature's intent that Title 29A RCW serve as a comprehensive

scheme restricting access to ballots is evident from the fact that the legislature

has specified that certain nonballot election records may be disclosed to the

public. See RCW 29A.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 of election records as subject to public
No. 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 in other 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 of Fairlee, 2011 VT 48, 190 Vt. 66, 26 A.3d 26. These cases

are not persuasive in our interpretation of Washington law, as they were decided

within different statutory frameworks and under different factual circumstances.

      We conclude that in Washington, all "ballots," including copies, are exempt

from production under the Public Records Act by Title 29A RCW—an "other

statute." The exemption is necessary to protect the "vital governmental function"

of secret ballot elections. RCW 42.56.210(2). We join our colleagues in Division

Two, who recently reached the same conclusion in White'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 or digital 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.



                                         10
No. 72028-7-1/11


      The trial court ruled that redaction would not make disclosure possible:

      The constitutional mandate of absolute secrecy could not be
      adequately accomplished by just having government employees
      use their own discretion as to what is identifying on a ballot and
      what needs redaction. Nor are such employees even in a position
      to accurately ascertain what information could or could not be used
      to identify a vote. For example, only two citizens voted at the voting
      machine in this election. If someone 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 cast those votes. Likewise,
      patterns in voting data and how information can be used to identify
      voters may not be readily apparent to an election employee who
      may not have all election data before him at once or may not be a
      trained computer data expert. For example, disclosing a fax cover
      sheet separate from a fax vote would not seem problematic—
      unless you realized only one fax 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 know John Smith is the
      voter who cast the ballot. Election employees are not permitted to
      know who cast a ballot.
             The sheer number of documents that would have to be
      reviewed for redaction by fallible humans without any rules or set
      procedures and the numerous unpredictable ways the documents
      could reveal voter identity are such that mistakes would be made
      absent clear protective rules and set procedures. If a ballot has a
      handwritten name is the chance someone will identify the
      handwriting a sufficient reason for nondisclosure? Is disclosure of
      a write-in vote in the same name as the voter a violation of absolute
      secrecy? Is a doodle on the ballot an identifying mark or not? A
      single mistake means the constitutional mandate for absolute
      secrecy is violated. The Washington Constitution does not allow 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 great a risk for
      violating secrecy would not comply with the constitutional mandate.
      The Constitution requires absolute secrecy. Const, art. VI, § 6.
              If the legislature intended to allow public disclosure of copies
      of individual ballots it constitutionally would have crafted substantial
      safeguards into that process to assure absolute secrecy. RCW
      Chapter 29A provides no procedures to protect the secrecy of the
      vote upon Public disclosure because public disclosure is not
      contemplated. The lack of any such statutory safeguards indicates
      the legislature had no intention that ballots be subject to public

                                         11
No. 72028-7-1/12


       disclosure. Compare, RCW 29A.60.230, providing a special
       protection for aggregating public election results when the number
       of voters is so low in a precinct that separate reporting of precinct
       results may reveal identity).

       We agree with the trial court's reasoning. Redaction will not eliminate the

risk that disclosing copies of ballots 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 of attorney fees and a daily penalty under the Public Records Act because

the counties' responses were insufficient.

       Agency responses refusing inspection of any public record must include a

statement of the specific exemption authorizing the withholding of the record and

"a brief explanation" of how the exemption applies to the record withheld. RCW

42.56.210(3). In order to 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 of exemption should contain enough details to (1) enable a

requestor to make a threshold decision about whether the exemption was proper

and (2) enable judicial review of the decision to withhold. Rental Hous. Ass'n of

Puget Sound v. City of Pes 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.


                                           12
No. 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

"brief explanation," 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 subject to the same provisions for

secure storage as the originals.

       Island County took a different approach. Instead of an 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 in the 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 of ballots scanned so far for this election is
       28,668.

       For each of the scanned ballots a corresponding digital image file
       exists for each side of each 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 e-
       mails for reasons described below, the County cannot list each
       digital file and 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 sender of the ballot (such as the initials or signature
       of the voter handwritten on the ballot or metadata associated with



                                          13
No. 72028-7-1/14


      the e-mails) is exempt from disclosure pursuant to 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
                   for those specific purposes set forth 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 ballots without an order from a
                   Superior Court Judge would constitute a violation of
                   these statutes. Pursuant to RCW 29A.04.008, this
                   applies to copies of ballots in any format, including copies
                   of digital ballot images or e-mailed ballots.

                   Because a specific statute prohibits their release, these
                   records are being withheld in their entirety under RCW
                   42.56.070(1), which references documents exempt from
                   disclosure under other statutes. We will not release the
                   ballot images without a court order as described by
                   statute.


       White argues that Island County's response violated the act by not

providing an exemption log at all. We disagree. It is unnecessary to provide an
exemption log repeating the same explanation thousands oftimes for the same
type of document. Island County's succinct and informative letter efficiently
fulfilled the "brief explanation" requirement.

       White contends both counties' responses should be deemed inadequate

and vague because they did not specifically respond to the seven categories of
ballot images that he requested. But each county identified the same

exemptions for all ballots withheld. It would have been pointless to repeat the
same explanation for each of the seven categories within the universe of all

ballots.




                                            14
No. 72028-7-1/15


       White contends Skagit County should be penalized for failing to respond

to his request for "the original metadata and Properties of the electronic or digital

files requested." White did not clarify this request when asked. "If the requestor

fails to clarify the request, the agency .. . need not respond to it." RCW

42.56.520.

       White contends that a request for metadata need not be clarified because

the term is well defined in O'Neill v. City of Shoreline, 170 Wn.2d 138, 143,147,

240 P.3d 1149 (2010). He argues that the County was feigning ignorance about

metadata in order to avoid the duty to search for it. In the circumstances of this

case, we disagree. It was not unreasonable for the County to ask White to

explain how or what part of metadata associated with the electronic or digital files

could be a public record, given the County's position that the electronic or digital

files themselves were exempt as ballots. As the trial court correctly concluded,

White's failure to respond to the request for clarification excused the County from

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 against them.

               REQUEST TO CONSIDER ADDITIONAL EVIDENCE

       White requests that this court consider a declaration that Pierce County

made ballot images public in connection with a past election. Under RAP 9.11,

this court may consider evidence that was not before the trial court if, among

other things, additional proof of facts is "needed to fairly resolve the issues on


                                          15
No. 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 in this case are already made public in Washington, 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 of numbers 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. But even if that 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 exempt from the

Public Records Act is rooted in the 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

answer to the amicus brief filed by Washington Coalition for Open Government.

An answer to an amicus brief "should be limited solely to the new matters raised

in the brief of amicus curiae." RAP 10.3(f). Rather than answering new matters

raised by the Coalition, White responded to the counties' arguments made in

their answer to the Coalition's brief.

       The counties request fees and costs under RAP 18.9 as a sanction for a

frivolous appeal. White's appeal is not frivolous. We deny the request.


                                         16
No. 72028-7-1/17


      Affirmed.




WE CONCUR:              6




                            U~


                            c




                   17
