Boulder County: $7,500 for open records request justified

Jefferson Dodge | Boulder Weekly

In what may be another case of a government agency gouging citizens for access to public records, Boulder County officials are defending their estimate that they would have to charge someone $7,500 for documents related to the testing of a controversial ballot processing machine used in the last general election.

Boulder Weekly has been documenting situations in which the city of Boulder and other public bodies around the state have started charging exorbitant amounts for purported “research” costs in response to open records requests, as well as taking longer than what is permitted by state law to produce such records.

Jim August, who was appointed by the Boulder County Republicans to serve as an election “watcher,” filed an open records request on Jan. 2 asking for a variety of files related to the provision and testing of a piece of equipment used to sort and scan ballots. He and Assistant County Attorney Brooke McKinley exchanged letters, and in a Jan. 11 memo, McKinley informed August that the cost of providing the test-related documents would be $7,500, based on research costs assessed at $30 an hour. That amount did not include the cost of copies, which are 25 cents a page.

According to McKinley, Clerk and Recorder Hillary Hall’s staff estimated that the request would involve going through about 2,600 pages of hard-copy documents as well as 2,800 digital files.

“Because there is such a large quantity of information and raw data that would need to be reviewed for confidentiality and proprietary information before the information could be released, Clerk Hall’s staff estimates that assembling, reviewing and redact ing the information and data will take approximately 250 hours,” McKinley wrote.

Election integrity activist Marilyn Marks of the Citizen Center questioned whether increasingly common responses like these are intended to deter members of the public and the media from acquiring materials under the Colorado Open Records Act (CORA).

“I think it is outrageous, obstructionist and absolutely intended to make activists and concerned citizens like Jim go away,” Marks said of the $7,500 tab.

Case law allows government agencies to charge search and retrieval fees, but only in the case of voluminous requests, and even then, the charges should be “nominal,” or only a small percentage of the agency’s actual costs.

Marks asked how $7,500 could possibly be seen as “nominal,” and she questioned what would be “confidentiality and proprietary information” regarding a piece of equipment used in elections, which are supposed to be among the most open and transparent processes in the country.

“Without full transparency of every aspect of election processing, the election fails to be a people’s democratic process and undercuts the most fundamental concepts of self-governance,” Marks said via email. “And really? A $7,500 deposit for reviewing test data on tests purportedly performed in the last nine months? It is not like August asked for test data from the voting machine purchased for the 1912 Wilson/Roosevelt/Taft election. That might take some ‘research’ to find. It is clearly an obstructionist policy for the county to attempt to claim fees for redaction of records. August is supposed to pay for officials deleting information that is being withheld from him?”

Deputy Clerk Molly Tayer, the county’s elections coordinator, says she is not sure what “confidentiality and proprietary information” staff would have been looking for in poring over all of those documents. But she guessed it might have had to do with not releasing proprietary information from the company that made the machine.

“What it would basically be is making sure that we are clear with the vendor, that their information is releasable,” she said.

McKinley could not be reached by press time.

Tayer said the $7,500 charge was not intended as a deterrent against August’s request, and she added that the clerk and recorder’s office is not attempting to discourage others from requesting open records.

“Our goal is to make sure that if we’re asked to go off and do something that would require us to move staff away from projects and go perform specialized work, the taxpayers of Boulder are not paying for that,” she told BW. “If it is something that is not in the normal course of business, and it’s a piece of research on behalf of a particular interest’s request, we’re trying to make sure that they understand that we’re reappropriating resources to do that for them, and here’s what that would cost.”

Another issue is timeliness. The text of the Colorado Open Records Act reads: “The date and hour set for the inspection of records not readily available at the time of the request shall be within a reasonable time after the request. … A ‘reasonable time’ shall be presumed to be three working days or less. Such period may be extended if extenuating circumstances exist. However, such period of extension shall not exceed seven working days.”

And yet, like the government of the city of Boulder and other government agencies have been doing on a regular basis, Boulder County officials wanted more than the three days, or even the seven-day extension. In a March 4 letter — sent in response to a request filed on Feb. 27 — McKinley told August it would take until March 15 for election staff to produce the files he requested.

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August, who said he has since narrowed his open records request to reduce the cost and expects to hear back from the county on March 15, seems to have pried enough documents out of the county’s hands to support a multifaceted complaint about the ballot equipment in question.

He presented a 14-page report to the Boulder County commissioners last week outlining a host of concerns about the Bell & Howell ballot-sorting machine, which scans signatures and arranges ballots by precinct and style. Those concerns include whether the purchase of the equipment followed the county’s bidding/request for proposals process, the apparent lack of testing for the machine’s signature verification process and its sorting functions, and evident malfunctions the equipment suffered while it was in use, according to his observations as a watcher.

But Tayer says her office followed the proper procedures for acquiring the system, working with the county’s purchasing department and gaining the commissioners’ approval. She says staff did not use the Bell & Howell’s signature verification process, so it didn’t need to be tested, but the equipment’s other functions were tested, including during the primary.

“We did tons of testing,” Tayer said, noting that August could save some money on his open records request if he would just wait until the staff finishes processing the test records on its own schedule, which she acknowledges has been delayed.

Tayer also admitted that the Bell & Howell system is new to the county, and Hall wanted to take “baby steps” and not “deploy all the bells and whistles” of the equipment immediately. But she insists that it did not malfunction, and that the Bell & Howell staff who were on hand during election day were there as a precaution and just did some “calibrating.”

But Marks says she plans to file an open records request for video surveillance showing all of the work that had to be done on the equipment while it was in use.

“And they better not charge me anything,” she says. “They can’t possibly think that would take a lot of research time. I would definitely challenge them on that.”

Marks posted a video parody of the Bell & Howell machine at