Carve Outs Carve Up Access to Public Records

A few years back, you might remember, a little-known organization at the time called the Know Campaign made headlines when it was discovered the group had obtained voting history information and planned to send out personalized mailings to hundreds of households detailing when they’d voted in the past.

Voting history records are maintained by the State Board of Elections. At the time, the lists -- which show when a person voted, but not for whom they voted -- were available to elected officials, candidates and political party chairs, but not to anybody else. The Know Campaign said only that they received the list from a vendor but would not say who that vendor was.

The group decided against the mailing but nonetheless sued the SBE when the board said it would not give the group the the voting history data. In February 2011, a Richmond area judge ruled the restriction on who could get the voting history information was unconstitutional. Though the ruling appeared narrow on its face, Tony Troy, a former Attorney General and the Know Campaign’s lawyer said it would open to the door to other nonprofit, nonpartisan organizations to access the lists.

The 2011 General Assembly was stymied by the ruling and could not even begin to agree on what to do with the existing law on such short notice.

This year, however, both chambers held their collective noses and voted to pass HB1118. The governor signed it on April 6.

The new law, which goes into effect July 1, expands the ranks of those now entitled to access the voting history records: 

(i) candidates for election or political party nomination to further their candidacy, (ii) political party committees or officials thereof for political purposes only, (iii) political action committees that have filed a current statement of organization with the State Board pursuant to § 24.2-949.2 or with the Federal Elections Commission pursuant to federal law, for political purposes only, (iv) incumbent officeholders to report to their constituents, and (v) members of the public or a nonprofit organization seeking to promote voter participation and registration by means of a communication or mailing without intimidation or pressure exerted on the recipient, for that purpose only.

The law goes on to say the data is to be used only for campaign and political purposes and for reporting to constituents.

The bill was an awkward one for VCOG. As a general matter, we oppose carve-outs, which is what we call attempts to make public information available to some, but not all of the public. When the system to make land records available online by remote access subscriptions was being hashed out, we opposed a proposal that would have given some preferential treatment to, among others, genealogists. We have opposed bills that would grant access to private investigators, concealed handgun permit holders, historians, the media or other segments of the public when it meant that the rest of the public -- the ordinary Joe on the Street -- could not have similar access.

We believe a public record is a public record. As the headline to a Roanoke Times editorial proclaimed, “a record can’t be partially public.” It should not be up to the government to decide who among the general populace is good enough to get the record and who is not. The premise assumes that there are acceptable and, perhaps, unacceptable uses of public records. Again, that’s not for the government to decide.

We argued as much in a Senate committee hearing the bill. But considering most of the lawmakers were reluctant to share their golden goose at all, much less with the whole of the unwashed masses, our pleas went unheeded.

But I’m not too sorry about that in this particular case, and that’s because unlike past proposed carve outs, which were attempts to close off otherwise open information to all but a few, HB1118 proposed to open up information that has been off limits.

The key is subsection (v): "members of the public or a nonprofit organization seeking to promote voter participation and registration." That category could encompass any number of individuals and groups. It could include VCOG: we believe that access to information is vital to the election process. It could include the news media, whose stories are designed to contribute to campaigns and whose voter guides are community resources that promote voter participation.

Of course, the fact that (v) could apply to VCOG or the news media doesn’t mean that it will. And therein lies the problem with these carve outs: it will be up to the SBE or a local registrar to decide whether a group fits the definition of (v) and whether it will be using the voting lists for campaign or political purposes. A registrar in Pulaski County may think VCOG meets the definition, while the registrar in Prince William might laugh us out of the office.

So, while I am heartened to see a step towards the opening up of these public records, I will still believe that carve-outs do not belong in statutes addressing public records. Public records belong to the public. All of the public.