Directives of Obstruction

June 26, 2012

Thank you for contacting us about your request to view voted ballots and other election related

materials. You raise concerns about the possibility of being charged to view ballots in response

to a public records request. Your request is one of several requests presented to county and

municipal clerks following the June 5th recall elections. Let me provide some basic information

about the treatment of election materials, particularly voted ballots, with respect to Wisconsin

Public Records law. Wis. Stats., Chapter 19, Subchapter II.

1. Voted ballots, tally sheets and voting equipment printouts showing the results of

electronically tabulated ballots are public records.

2. These records may not be viewed by members of the public until after the applicable

deadline for requesting a recount has passed or if a recount occurs, the applicable appeal

deadline has passed.

3. In the case of the recall elections conducted on June 5, 2012, the recount deadline for Senate

Districts 13 and 29 was 5 pm on June 19, 2012.

4. In the case of the recall elections conducted on June 5, 2012, the recount deadline for

Governor, Lt. Governor and Senate District 23 was 5 pm on June 26, 2012.

5. The deadline for the appeal of the recount occurring in Senate District21 has not been

established.

6. Custodians of public records are entitled to charge location fees for the actual, necessary and

direct cost of location of a record if the cost is $50 or more. Wis Stats. §19.35 (3)(c)

7. Voted ballots are secured in sealed containers following an election. Wis Stats. §7.51 (3)(a)

8. These voted ballots may be stored in a location separate from the office of the custodian.

9. Under state law no one may touch a voted ballot after it has been deposited in a voting device

or ballot box except an election official. Wis Stats. §9.01 (1)(b)11.

10. Voted ballots may be copied or viewed under the public records law.

11. Because voted ballots are the official record underlying the certified election results, local

election officials who maintain custody of these records must be diligent in protecting these

records from tampering.

12. If an election official, who is the custodian of voted ballots, receives a request to copy or

view the records after the applicable deadlines for a recount or appeal have passed, there are

several steps that need to be taken to locate these records and make them available for

copying or inspection.

13. These steps include:

a. Retrieving the documents from the secure location,

b. Making a notation in the chain of custody of the tamper proof seal number on the

container holding the voted ballots,

c. Breaking the seal and making a record in the chain of custody of the removal of the

voted ballots from the container,

d. Copying the voted ballots or making them available for inspection,

e. Returning the voted ballots to the secure container, sealing the container and making a

notation in the chain of custody document of the tamper proof seal number,

f. Returning the voted ballots to the secure location.

14. If the voted ballots are made available for inspection, they may not be given to the requester

to handle. The custodian must present each individual ballot to the requester in a manner that

enables the requester to view the ballot without touching the ballot. This is necessary to

protect the integrity of the voted ballot.

15. This morning’s Wisconsin Supreme Court decision focuses on redaction costs. State law

explicitly permits charging location costs if more than $50.

On June 26, 2012, at the annual Summer Symposium of County Clerks, we shared this advice

with County Clerks because of the large number of public records requests submitted to county

clerks with respect to voted ballots and other records related to the conduct of the June 5, 2012

recall elections. The county clerks were advised to discuss the requests with their corporation

counsel, who is charged with advising them with compliance with the public records law. We

believe these steps are directly related to locating the records and preserving their integrity while

making them available for copying or inspection consistent with the legislative declaration of

policy set out in Wis Stats. §19.31.

Kevin J. Kennedy

Director and General Counsel

Wisconsin Government Accountability Board