In the third of a series of cases, the Washington Court of Appeals in White v. Clark County [White III] holds ballot secrecy extends after mandatory retention periods. In White v. Clark County (2015) [White I] and White v. Skagit County (2015) [White II], the Court of Appeals previously held pre-tabulated ballots are exempt from production in response to a records request under Washington’s Public Records Act (PRA), chapter 42.56 RCW. Because the requests associated with White I and White II were for ballots stored within mandatory retention periods, the decisions did not directly control the request in White III for ballots stored after those periods.
Immediately after tabulation, “all ballots counted at a ballot counting center must be sealed in containers … and be retained for at least sixty days….” The sealed containers may only be opened by the canvassing board for the canvass, a recount, random checks, or by court order. Plaintiff Timothy White (the requester) argued that, after the mandatory retention period, ballots are no longer required to be kept in secured containers and are therefore subject to production in response to a public records request. The Court of Appeals disagreed:
… under the plain statutory language, the agency has two choices once the 60-day period ends: the ballots must be kept in sealed containers indefinitely unless one of four specific situations arises or the ballots must be discarded. Neither choice allows the ballots to be disclosed to a requesting person.
White also argued that, several years after an election, ballot secrecy is no longer necessary. Based on this premise, White claimed the ballots must be produced under a provision in the PRA requiring agencies to disregard exemptions when nondisclosure is “clearly unnecessary to protect any individual’s right of privacy or any vital governmental function.” The Court rejected this claim and held the “absolute secrecy” of ballots under Article VI, section 6, of the Washington Constitution, as well as the protections provided in Washington’s election statutes and regulations, were sufficiently important to protect ballots from production.