A Freedom of Information Commission (FOIC) decision finding that sample ballots and in-person ballots cast at municipal primaries and referenda are public records subject to the Freedom of Information Act (FOIA) when not held in conjunction with elections will be reviewed after the Secretary of the State’s (SOS) office sent a legal opinion to the commission.

The decision to have the hearing officer reopen a decision that largely favored a FOIA request for sample and in-person ballots in a June 2024 Colchester budget referendum made by former Colchester selectman Jason LaChapelle was made at an August 27 FOIC meeting after the commission received an unsigned, undated legal opinion from the SOS’ office saying they had erred in their conclusion and placing blame for the error on the FOIC for not reaching out to the SOS’ office.

The language and the method in which it was delivered angered FOIC commissioners, but they ultimately voted 5-3 to allow the hearing officer in LaChapelle’s complaint to reconsider the decision.

On July 23, the FOIC ruled that Colchester had violated FOIA by denying LaChapelle access to sample ballots used to test tabulators prior to the town’s budget referendum and in-person ballots cast in the referendum. They found the town had not violated FOIA by failing to turn over copies of absentee ballots.

At issue in the case was Title 9 of state statute, which governs state elections, and which the Colchester Board of Selectmen argued the legislature intended to apply to municipal referenda. But the hearing officer found, in keeping with other rulings from state superior court, that language saying 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” only applies when they are held in conjunction with other state or municipal elections. As this was not the case for the records LaChapelle was seeking, the hearing officer found they were public records subject to disclosure.

At the meeting where the decision was adopted, legal representatives for Colchester asked the FOIC to delay ruling on the case because they had just reached out to the SOS’ office for clarification. Asked why they had not reached out to the SOS’ office so earlier in the case, the representatives said they had not anticipated a ruling going against them.

The SOS’ office sent the FOIC an unsigned, undated legal opinion about “FOIA interpretation of Title 9” in LaChapelle’s case. The document says the FOIC “failed to reach out to” the SOS’ office for interpretation of the statute and calls their “election law expertise” “spurious at best” and says they should have reached out to the SOS’ office for a formal opinion.

The document states that under two sections of Title 9, the SOS’ is given deference on instructions issued by the office and that extends to municipalities. It further claims that a different section of Title 9 not cited by Colchester in the case, which lists voters’ rights, emphasizes the right to privacy.

“This statute does not differentiate between referenda and elections, nor does the statute delineate a timeline for when privacy ends. Therefore, privacy continues through the entirety of the voting process.” the opinion, which characterizes the FOIC’s decision as an “attempt to circumvent voter privacy,” reads.

The FOIC declined to order Colchester to turn over the names of voters associated with the ballots when it ordered them released.

“The result of the FOIC’s decision is that the privacy of the in-person voter and the privacy of the absentee voter is not the same. This is an absurd outcome. To prevent this outcome, this office has advised municipalities to treat referenda as closely to an election as possible.” the opinion also states.

During deliberation of the motion to consider whether to reconsider the decision in LaChapelle’s complaint, several commissioners spoke against the wording of the opinion and the way it was delivered.

Commissioner Tom Hennick said he found the communication “offensive,” “arrogant,” and “condescending.” Commissioner Judy Ganswindt said she resented the way the SOS had involved itself in the case and wanted it on the record that it was “wrong.” Commission chair Owen Eagan noted that the SOS’ office could move to intervene in the case if the hearing officer decided to reopen it, which he noted is the “appropriate, legal way” to become an involved party.

LaChapelle shared an email he sent to the commission expressing his “frustration and disappointment” with the vote to allow the hearing office in the complaint to reconsider it with Inside Investigator.

“The problem is not the Commission’s work, but the way the Respondents and now, belatedly, the Secretary of the State’s office have chosen to handle this matter. The Respondents leaned on their political connections to obtain an anonymous and legally irrelevant letter from the Secretary of the State’s office, which was used to pressure the Commission into taking the extraordinary step of reconsideration. Reconsideration is supposed to be rare, reserved for genuine errors of law or the discovery of truly new evidence. Here it has been triggered by neither. Instead, it has been wielded as a tool to repackage arguments already made and already rejected. And the claims themselves are hardly new.” LaChapelle wrote.

LaChapelle also shared an email exchange between Colchester resident Deanna Bouchard and the SOS’ office about a response from a frequently asked questions (FAQ) page on their website for town clerks and registrars of voters. One question states the SOS’ office has “extremely limited jurisdiction” over municipal referenda. This was cited in the FOIC’s initial decision ordering the release of the ballots.

Bouchard asked whether she was correct in reading the state statute and their FAQ page to mean local referenda are subject to the jurisdiction of municipalities rather than the SOS’ office. An elections officer from the SOS’ office said this was correct and additional information would come from the local level.

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