A Freedom of Information Commission (FOIC) ruling that Colchester officials must turn over sample and in-person ballots cast at a June 11 budget referendum is once again in effect.

The FOIC previously ruled that Colchester must turn those ballots over to former Colchester selectman Jason LaChapelle, but returned the decision to the hearing officer for reconsideration after the Secretary of the State’s (SOS) office sent a legal opinion suggesting the decision would compromise voter privacy and misread state election statutes.

Despite that move, the SOS’ office chose not to intervene further in the case, and the FOIC has voted a second time to adopt an opinion finding that sample and in-person ballots cast in the referendum must be disclosed under the Freedom of Information Act.

Background

In July, the FOIC ruled largely in favor of LaChapelle in a FOIA request he filed seeking sample ballots used to test voting tabulators used in Colchester’s June 2024 budget referendum and copies of in-person and absentee ballots cast in the referendum.

While the town provided some documents responsive to another part of the request, they denied the request for the ballots, citing a state statute that requires election monitors to seal tabulators once a count is completed and to leave them sealed for fourteen days unless election authorities order otherwise. They also cited guidance from the SOS’ office stating private citizens don’t have the right to handle ballots outside of guidelines for audits or recanvases.

However, the FOIC found that various portions of Title 9, which governs state elections, cited by Colchester officials in their argument that the ballots were exempt from FOIA disclosure, did not apply because Colchester’s referendum did not occur at the same time as any other state or local election.

While the FOIC ruled in LaChapelle’s favor and ordered the release of the sample of the in-person ballots, though not absentee ballots, they later voted to return the decision to hearing officer Danielle McGee for reconsideration at a September meeting.

That 5-3 decision from the FOIC came after the SOS’ office sent an unsigned, undated legal opinion to the commission. (Editor’s note: The SOS’ office previously contacted Inside Investigator to state they believe the opinion should not be considered undated because it was sent in an email with a send date.)

In that opinion, the SOS’ office chastised the commission for “failing to reach out” about how the statute should be interpreted and called their “election law expertise” “spurious at best.” The opinion denied that statute differentiates between referenda and elections and called the FOIC’s decision an “attempt to circumvent privacy.”

It further stated that Title 9 gives the SOS’ office deference on instructions issued by them, which they claimed extends to municipalities.

The opinion angered members of the commission. Commissioner Tom Hennick called it “offensive,” “arrogant,” and “condescending.” Chairman Owen Eagan noted that the SOS’ office could move to intervene in the case if it was reopened, which he called the “appropriate, legal way” to become an involved party.

At the meeting where the FOIC voted to adopt the original decision, Colchester asked for a delay in the ruling because they had just reached out to the SOS’ office. When commissioners asked the town why it had taken them so long to contact the SOS’ office, the attorney representing the town said they had not anticipated a ruling going against them.

But while the FOIC ultimately voted to return the case to the hearing officer for consideration, the SOS’ never moved to intervene.

On October 23, the FOIC issued an order to the town to turn over any communication with the SOS’ office by October 30, as at that point they had not done so.

The Latest Decision

During its November 19 meeting, the commission voted to accept a new hearing officer’s report, which ordered the release of the sample and absentee ballots.

The hearing officer’s report largely restates its findings from the original decision, but also addresses the SOS’ opinion.

The decision notes that in an email exchange between the SOS’ office and Colchester, the SOS’ office expressed interest in providing guidance for an interpretation of Title 9 and stated that would include “a comprehensive review of the relevant Connecticut laws and regulations, old decisions from court cases/and or administrative hearings, along with a survey of how other states that make ballots subject to FOIA disclosure do so, with a particular eye towards preventing vote buying schemes and the inadvertent release of any information that might tie a ballot to a particular voter.”

“The Commission notes that the undated and unsigned letter of the Office of the Secretary of the State notably lacks the comprehensive review that its counsel recommends and does not raise any statutory exemptions that would prohibit the disclosure of the records ordered disclosed in the Proposed Final Decision.” McGee wrote in her proposed decision.

In its opinion, the SOS’ office stated its authority over stand-alone referenda came from a section of Title 9 that gives the SOS the authority to “advise local election officials in connection with proper methods of conducting elections and referenda.” The opinion also stated this and other sections of Title 9 give the SOS’ office deference on opinions it issues and “create the presumption that instructions issued by the Secretary of the State concerning referenda are correct.”

But the Connecticut Supreme Court has ruled that the deference the SOS’ office is given in statute does not entitle it’s ability to interpret statute to “deference greater than the decisions of other agency heads,” as McGee noted in her decision.

McGee also noted that the SOS’ office has stated its guidance on stand-alone referenda is advisory and voluntary unless state statute specifically applies. The decision cites a frequently asked questions page for town clerks and registrars of voters on the SOS’ website that says they generally cannot issue an opinion on referenda or town meetings because they have “extremely limited jurisdiction.”

The decision also addressed the SOS’ claims that the order to release in-person ballots would compromise voter security, arguing the decision encourages absentee ballot voting and would make it easier to identify in-person voters.

“Such contention, however, is speculative in nature and provides the Commission with no legal basis from which to conclude that the in-person ballots at the June 11, 2024 stand-alone budget referendum are not public records subject to the disclosure requirements of the FOI Act.” McGee wrote.

The SOS acknowledged in its opinion that no state statute says in-person ballots from state budget referendums are not public records, but they nevertheless recommended those records not be disclosed.

“The Commission has no desire to cast aside recommendations of the Secretary of the State. However, it must do so when it believes that such recommendations are contrary to law and the disclosure provisions of the FOI Act. The commission finds that the recommendation [that the ballots not be disclosed], and the recommendations in the undated and unsigned opinion letter, are erroneous, and stand in direct contradiction to [FOIA’s disclosure requirements].”

The FOIC ordered the ballots to be turned over to LaChapelle within 45 days, but specified that personally identifying information could be redacted.

At the meeting where the commission adopted the decision, Colchester officials again objected to the order and expressed “concerns” with how they would comply with it. The town’s attorney said the order put Colchester officials in a “difficult position” between the FOIC and the SOS’ office because of their belief Section 9 does apply.

She also stated, in response to a question from Eagan, that the town had no correspondence with the SOS after the FOIC voted to reconsider the decision.

LaChapelle asked that the time limit Colchester had to turn records over be shortened to 7 days, citing the case’s long history and delays granted to the town.

While McGee initially did not recommend a civil penalty, the commission discussed issuing a $500 fine to Colchester over its conduct, including the town’s expressed confusion about what to do and failure to seek guidance from the SOS. Commissioners were split on whether a penalty for acting in bad faith was warranted and ultimately did not issue a fine.

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