When they meet on July 23, the Freedom of Information Commission (FOIC) will rule on the release of sample ballots used to test voting tabulators at a Colchester budget referendum, as well as in-person ballots cast during the referendum. A report prepared by a hearing officer who heard a complaint against the town has ordered the release of the sample ballots and in-person ballots, but found that the state’s election laws prevent the release of absentee ballots cast in the referendum.
On June 12, 2024, former Colchester selectman Jason LaChapelle submitted five separate FOIA requests to the Colchester Board of Selectmen (BOS) seeking a variety of records related to voting at a June 2024 budget referendum.
Included in LaChapelle’s request were documents related to the testing of tabulators prior to a June 11, 2024 budget referendum vote, documents about an alleged software glitch that occurred in tabulators the morning of the vote, copies of in-person and absentee ballots cast in the budget referendum, paper logs of in-person voters, and video footage from cameras covering the area where the tabulators were kept.
On July 29, 2024, the town provided some records responsive to LaChapelle’s request for documents about the glitch and notified him that other related documents he requested did not exist. That request is not at issue in LaChapelle’s complaint to the FOIC.
The town denied part of LaChapelle’s first request, specifically a request for sample ballots used to test the tabulators. They cited a state statute that requires election monitors to seal tabulators once a count is completed and to leave the results sealed for a period of fourteen days unless there’s an order from specific election authorities. They also cited guidance from the Secretary of the State’s (SOS) legal team stating that private citizens don’t have the right to handle ballots outside of guidelines for audits or recanvases.
They also denied a portion of LaChapelle’s third request, which sought copies of in-person or absentee ballots, again citing state statute and guidance from the SOS’ legal team.
On August 1, 2024, LaChapelle filed a complaint with the FOIC, arguing that the BOS and the town had violated FOIA by denying the sample ballots and copies of in-person and absentee ballots. He also requested that a civil penalty be assessed.
According to the hearing officer’s report, both at a hearing on the complaint and in a post-hearing brief, the town argued that those records are not subject to disclosure under FOIA and that Title 9 of state statute “prescribes what municipal officials shall do with ballots, sample ballots, and absentee ballots after a municipal referendum is held.”
The town’s argument that the records were exempt from disclosure relied on a number of sections in Title 9, which govern elections and which they argued the legislature intended to apply to municipal referenda. The statutes they cited included a section that lays out procedures for holding town referenda, sections that provide procedures for recanvassing votes when a question is too close to call or when there are discrepancies, a section of statute that lays out the procedure for manual or electronic audits of votes by registrars of voters or town clerks, a section of statute that provides guidelines for absentee ballots, a section that lays out procedures for depositing absentee ballots after they’ve been counted, and another that limits who can open the envelopes absentee ballots are deposited in.
The BOS further argued that disclosing the ballots would go against the idea that “the longstanding right of a citizen to confidentially cast their vote is sacrosanct.”
The hearing officer found that the section of statute the BOS cited that creates procedures for holding referenda applies when they are held in conjunction with regular or special state or municipal elections.
The hearing officer cited a 2003 ruling from the Connecticut Superior Court where the town of Plymouth sought a declaratory judgment that a bond referendum it held in 2002 was valid. The results of the referendum were disputed by a number of town residents.
Defendant Melanie Church-Dlugokenski argued that the referendum was invalid. While Church-Dlugokenski initially sought a declaratory ruling voiding the referendum, both parties agreed to a motion for summary judgment based solely on whether Church-Dlugokenski’s challenge of the referendum was timely. The town argued Church-Dlugokenski had missed a statutory fourteen-day deadline to challenge the referendum, and her claim was not timely.
Plymouth cited section 9-369 of the state statutes, the same portion of statute as the Colchester BOS applying to procedures for holding referenda, and specifically cited language that states the results the result of referenda must be determined “as nearly as may be in accordance with the provisions governing the elections of officers in the state or in such municipality.” They further argued that a section of statute requires complying with the statutory fourteen-day deadline.
While the court ultimately found in favor of the town, they did agree with Church-Dlugokenski’s argument that language in 9-369 limits it to referenda held in conjunction with other state or municipal elections. They also found other language in Section 9 of state statute that shows the legislature recognized the existence of stand-alone referenda. The hearing officer’s report made note of this finding.
She found that Colchester’s budget referendum was not held in conjunction with any elections and that Section 9-369 of state statute was not applicable.
She also found other sections of statute that the town relied on did not apply. Colchester argued that a section of state statute that sets out procedures for recanvassing votes and creates procedures for locking and sealing tabulators meant the ballots LaChapelle was seeking through FOIA were exempt from disclosure. But the hearing officer noted that no recanvass of the referendum occurred and there was nothing in the statute to support Colchester’s claim that those provisions would prevent the disclosure of ballots when a recanvass had not occurred.
The hearing officer also noted that another section of statute the town relied on, which applies to audits of elections and primaries, did not prevent the disclosure of ballots because audits and referenda are not elections and not subject to audits.
The hearing officer further dismissed several other FOIC cases the town cited as precedent for why ballots could not be released. In one of those cases, the FOIC concluded that a request to inspect the voting machines from a 1997 election did not violate FOIA because public access to election records was governed by areas of statute outside FOIA. In two other cases, the FOIC concluded that two requests to inspect ballots did not violate FOIA. In the first case, they came to this conclusion because access to ballots is governed by state election statutes. In the second case, the commission disagreed with a claim that after a 180-day impoundment period following elections ballots become public records. The FOIC found that ballots can be destroyed after this date.
In the first two cases, the hearing officer notes the commission’s decisions do not address the question of whether sample or in-person ballots are exempt from disclosure. In the third case, the commission sought a formal opinion of the SOS, which provides guidance on requests for ballots cast in an election. But the opinion does not address ballots cast in a stand-alone referendum.
The hearing officer also noted that a “frequently asked questions” page on the SOS’ website notes that their office has “extremely limited jurisdiction” over referenda since they are a local issue. She concluded that Colchester did not cite any state statute that specifically stated sample ballots are not subject to disclosure under FOIA. While the town argued that Title 9 of state statute requires sample ballots to be sealed to prove they haven’t been tampered with at a later date, they did not provide any evidence showing this creates a FOIA exemption.
The hearing officer also addressed Colchester’s claim that disclosing ballots would erode the longstanding right of voters to cast a secret ballot, noting the issue had been addressed in previous FOIC decisions.
The FOIC concluded that casting a ballot is “presumptively secret,” but whether this created an exception to FOIA disclosure remained a question. In two rulings they found that language in FOIA that says records maintained by public agencies are public records unless “otherwise provided” in federal law or state statute requires “express terms in the state or federal law that either provide for the confidentiality of the documents or otherwise limit disclosure, copying, or distribution of the documents at issue” in order for an exemption to apply.
The FOIC found in a previous case that neither Title 9 of state statute nor Title 7, which governs municipalities, provided for the confidentiality of ballots cast and ordered disclosure, but allowed for the redaction of names if they had been written on ballots.
The hearing officer concluded that the sample ballots and in-person ballots case at the Colchester budget referendum are public records and should have been disclosed. Failing to do so violated FOIA.
However, the hearing officer found that the Title 9 statutes the town cited that apply to the sealing of absentee ballots cast in primaries and referenda did apply to Colchester’s budget referendum and that the BOS did not violate FOIA by denying LaChapelle’s request for them.
The hearing officer also declined to impose a civil penalty.
While she ordered the town to turn over the sample and in-person ballots, she also stipulated that the FOIC was not ordering the town to disclose the identity of individual voters.
The report will be taken up at the FOIC’s next hearing on July 23, at which time commission members will vote to either adopt the hearing officer’s report and conclusions or to make amendments. The town and LaChapelle will also have the opportunity to argue either for or against the report.