We are routinely denied documents both across the country and across the state as we try to investigate election integrity concerns. This will explore those issues from a Texas perspective. There are items concerning ballot images that are before the Texas Attorney General now, and I will update this when I have that decision. If I had found all of this earlier, I might have been able to avoid the trip to the AG.

There are three general sets of computer records involved in elections. The various Operating Systems for the components of the Electronic Voting Systems. We would love to have access to those. We have a case for that access, but it is weak. The OS isn’t specifically protected by law, but there are copyright and confidentiality agreements complicating issues. Second is the programming necessary to prepare for an election, this is the ballot format etc., and third are products of the election. This includes ballot images, cast vote records, the total accumulated votes, the number of ballots issued etc.

Two of these documents are particularly important for us to see. The ballot images, which are literally pictures of the ballots generated by the electronic voting system, and the Cast Vote Record. The CVR is a textual representation of all the information on your ballot. Sometimes these two are confused and that’s due to the various ways that various agencies and contractors use the terms. They are not defined in law. The bureaucrats attempt to give the images in particular, and at times the CVR, the same protections that are given to the actual ballots in Sec. 66.058 of the Texas Election Code. I have quoted laws below that I think counter that argument thoroughly.

552.101 Is also often quoted and they use it to refer to 66.058, but I believe the other sections of law I quote take them both out of play. 

Another dodge that we often see is - “We don’t have documents that are responsive to your request”. This is due to the fact that we don’t have the exact names of the reports that are stored, and the manuals that would give those names to us are proprietary and restrictive. My answer to that is OK just give me everything and I’ll sort it out. I believe that law allows for that, but that would create it’s own battle. I think we have recently gained enough knowledge to work through that argument.

I picked a fight on the ballot images with Tarrant County even though they really aren’t very useful to us right now. Tarrant county does not capture all images. I picked this document, mostly because I kept hearing that they were protected, but I didn’t think 66.058 covered them and I didn’t see anything else that would. I needed to see what else the bad guys had. It also isolated one of the two important documents, and for technical reasons, the one that is of the least use to me right now. I knew that if I got passed this one, I could get to the rest of the documents. If I lost, I lost on the least useful document. This issue is currently at the Texas Attorney Generals Office waiting on a ruling. Frankly I made mistakes in doing this, but I also learned a lot. I seem to learn most things the hard way. I don't think the errors were fatal.

If I can get the access I believe we are entitled to, we can do 50-60% of a forensic audit. I’m also pushing the county to make the information available on the web to lower the load on the Election Administration. I have tried to fairly represent the law and issues, but I think they are clearly in our favor. I thought that originally, and I’ve found much to reinforce that opinion since I started working on this. I have never really seen most of the codes I reference quoted anywhere. I think people have requested documents and accepted the answers they've been given and have not done additional research. Let's just say that's not in my nature

I do not think that most attorneys are comprehending that many of these records, but especially electronic records can be retained, and preserved, and made public in 2022. I quote 161.004 below. Although it is from a different section of the code it recognizes recognizes this fact. There are a few things that are specifically set to be locked away, the most significant one is the ballot itself.

Relevant Sections of Code

I include this 552.001 only to set a tone. Actually, I think that the Public information section of the code has Election Code is so specific, but I like this statement a great deal and it is law albeit one with exceptions. 

Sec. 552.001. POLICY; CONSTRUCTION. (a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.

(b) This chapter shall be liberally construed in favor of granting a request for information. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.

The bureaucrats use 552.101 and then refer to 66.058 as though it is making documents confidential, It does not. In fact the election code mentions the word confidential less than 15 times and it is only in regards to personally identifying information. 
 
Sec. 552.101. EXCEPTION: CONFIDENTIAL INFORMATION. Information is excepted from the requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.

There are two sections in 66.058 that I see referenced. The main one is (a). Many of these people seem to think that since these documents have to be preserved, that they are inaccessible. That’s nonsense. In the first place, the election results themselves are subject to this preservation requirement; so are we to wait 22 months to find out who won a race? After 22 months there is no requirement to maintain these documents, so telling you that you can’t have them now - ask again in 22 months could easily be telling you that you can’t ever have them because they can be destroyed after 22 months. Try telling the IRS that they can’t see your documents from three years ago, because you are required to keep them for 7 years. Title 7 of the election code actually demonstrates that documents can be “filed, prepared, or preserved” and be public information (referenced below). The second section I see referenced is (b-1). They attempt to equate the ballot images and sometimes the CVR’s with actual ballots. There is actually no legal definition in the Texas codes defining any of these terms, but they are certainly not specified here. Also note that the term “confidential” is not found in this code and that the term “Except as otherwise provided in this code..” is found in both relevant sections. Keep reading.

Sec. 66.058. PRESERVATION OF PRECINCT ELECTION RECORDS.
(a) Except as otherwise provided by this code, the precinct election records shall be preserved by the authority to whom they are distributed for at least 22 months after election day.
(b) For a period of at least 60 days after the date of the election, the voted ballots shall be preserved securely in a locked room in the locked ballot box in which they are delivered to the general custodian of election records. On the 61st day after election day, the general custodian of election records may:
(1) require a person who has possession of a key that operates the lock on a ballot box containing voted ballots to return the key to the custodian; and
(2) unlock the ballot box and transfer the voted ballots to another secure container for the remainder of the preservation period.
(b-1) Except as permitted by this code, a ballot box or other secure container containing voted ballots may not be opened during the preservation period.
(c) If during the preservation period an authorized entry is made into a ballot box or other secure container containing voted ballots, when the purpose for the entry is fulfilled, the box or container shall be relocked or resecured, and the box and key or secure container returned to the custodian.
(d) A custodian of a ballot box or secure container containing voted ballots commits an offense if, during the preservation period prescribed by Subsection
(a), the custodian: (1) makes an unauthorized entry into the box or container; or (2) fails to prevent another person from handling the box or container in an unauthorized manner or from making an unauthorized entry into the box or container. (e) An offense under Subsection (d) is a Class A misdemeanor.
(f) The records in ballot box no. 4 may be preserved in that box or by any other method chosen by the custodian. If the records are removed from the box, they may not be commingled with any other election records kept by the custodian.
(g) Electronic records created under Chapter 129 shall be preserved in a secure container.
(h) For the preservation of precinct election records in an election involving a federal office, the secretary of state shall instruct the affected authorities on the actions necessary to comply with federal law and otherwise implement this section. Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 1078, Sec. 18, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 1315, Sec. 40, eff. Jan. 1, 2004. Amended by: Acts 2005, 79th Leg., Ch. 950 (H.B. 1580), Sec. 1, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 1197 (H.B. 1446), Sec. 1, eff. June 15, 2007. Acts 2007, 80th Leg., R.S., Ch. 1197 (H.B. 1446), Sec. 2, eff. June 15, 2007. Acts 2009, 81st Leg., R.S., Ch. 682 (H.B. 2524), Sec. 1, eff. September 1, 2009. Acts 2011, 82nd Leg., R.S., Ch. 1164 (H.B. 2817), Sec. 13, eff. September 1, 2011. Acts 2017, 85th Leg., 1st C.S., Ch. 1 (S.B. 5), Sec. 2, eff. December 1, 2017.

Sec. 161.004. PARTY DOCUMENT AS PUBLIC INFORMATION. If a document, record, or other paper is expressly required by this title to be filed, prepared, or preserved, it is public information unless this title provides otherwise.

Now we are starting to get somewhere. 1.012 Pretty much makes everything that comes from an election a public record. Please note (b) and you will know why I ask for things to be posted on the web. It minimizes the time required for a department to answer such requests. (c) and (1) are clauses with real impact.

Sec. 1.012. PUBLIC INSPECTION OF ELECTION RECORDS. (a) Subject to Subsection (b), an election record that is public information shall be made available to the public during the regular business hours of the record's custodian.
(b) For the purpose of safeguarding the election records or economizing the custodian's time, the custodian may adopt reasonable rules limiting public access.
(c) Except as otherwise provided by this code or Chapter 552, Government Code, all election records are public information.
(d) In this code, "election record" includes: (1) anything distributed or received by government under this code; (2) anything required by law to be kept by others for information of government under this code; or (3) a certificate, application, notice, report, or other document or paper issued or received by government under this code. (e) An election record shall be available not later than the 15th day after election day in an electronic format for a fee of not more than $50.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended by Acts 1993, 73rd Leg., ch. 728, Sec. 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(88), eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 393, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2019, 86th Leg., R.S., Ch. 1215 (S.B. 902), Sec. 1, eff. September 1, 2019.

128.001 is particularly important. This is a direct exception to chapter 66’s requirement to lock away ballot materials. So now we know that the electronic records aren’t to be locked away in a box that can’t be opened. We really knew they weren’t anyway. The next entry makes this particularly valuable.

Sec. 128.001. COMPUTERIZED VOTING SYSTEM STANDARDS. (a) The secretary of state shall prescribe procedures to allow for the use of a computerized voting system. The procedures must provide for the use of a computerized voting system with: (1) multiple voting terminals for the input of vote selections on the ballot presented by a main computer; and (2) a main computer to coordinate ballot presentation, vote selection, ballot image storage, and result tabulation. (b) Notwithstanding Chapter 66, a system under this section may allow for the storage of processed ballot materials in an electronic form on the main computer. (c) The secretary of state may modify existing procedures as necessary to allow the use of a system authorized by this chapter. Added by Acts 1997, 75th Leg., ch. 1349, Sec. 50, eff. Sept. 1, 1997.

125.064 Is the most important section and it is the reason that I highlighted Certain terms at the beginning of this post. I highlighted the same terms here. This makes public pretty much all data associated with an electronic voting system. 161.004 is from a different title of the election code, but it shows that items can “filed, prepared, or preserved” and still be public information.

Sec. 125.064. RECORDS AVAILABLE FOR PUBLIC INSPECTION. Any documents or records used in the preparation of or prepared for use in an electronic voting system for the operation of the system for a particular election and any documents or records generated by the system in that election shall be made available for public inspection in the office of the general custodian of election records for the period for preserving the precinct election records. Added by Acts 1987, 70th Leg., ch. 484, Sec. 6, eff. Sept. 1, 1987.

Sec. 161.004. PARTY DOCUMENT AS PUBLIC INFORMATION. If a document, record, or other paper is expressly required by this title to be filed, prepared, or preserved, it is public information unless this title provides otherwise.