A&A: Are cast ballots public records?

Q:  Are cast ballots considered public records under the CPRA? These do not contain readily identifiable information as to whose ballot they are, if that matters. We are looking to request cast ballots in San Diego County that have had the Presidential candidate section redacted.

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A: I could not find any exemption in the CPRA itself that specifically applies to election ballots.  However, there may be other laws, such as those found in either California or federal election statutes, which are incorporated into the CPRA under Government Code § 6254(k), that might prevent disclosure.  I quickly searched the California Election Code to see if I could find an express exemption and turned up nothing; but I should note that this body of law is a slightly beyond the scope of our expertise, so it may be that there is, in fact, an applicable exemption within these laws.

I would suggest that you submit a written request to the agency that retains the ballots, because doing so will require the agency to respond to you within 10 days in writing as to whether the requested records are disclosable.

If the agency claims the records are exempt from disclosure, then it must specifically state which exemption it is claiming and how the exemption applies.  Gov’t Code § 6253(c).  At that point you should be able to analyze the exemption it is claiming to see if it is valid.

In general, the CPRA is to be interpreted in favor of disclosure, so unless there’s a specific exemption that applies to these types of records, any other claimed exemption that is more general in nature (for example, the so-called “catch-all” exemption, which agencies sometimes invoke when no other exemption applies) could be suspect and should be carefully scrutinized.

You can find more information about the CPRA, as well as a sample request letter here.

Bryan Cave LLP is general counsel for the First Amendment Coalition (FAC) and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.