Inside208

Michigan Bureau of Elections Advises Communities on 2016 Ballot FOIA Request

Posted on August 28, 2018 by Dene Westbrook

UPDATE: The Michigan Bureau of Elections has just issued a special news update with additional direction on this “Emily FOIA Request” issue. View it here.

A Freedom of Information Act (FOIA) request seeking a substantial amount of information from the 2016 presidential election, including a copy of every ballot cast, was sent to most (if not all) Michigan Municipal League members last week. The League is encouraging our members to follow the advice of State Director of Elections Sally Williams and the Michigan Bureau of Elections, which issued a special news update on the topic this afternoon (it’s also posted at the end of this blog).

Williams, according to Gongwer News Service, told reporters that she has advised all municipal clerks to follow their typical FOIA procedure in responding to any request from the group requesting the FOIA – United Impact Group, LLC. Under the federal retention schedule ballots must be kept for 22 months before moving to dispose of them. That deadline is in September and Williams also advised clerks they “should not destroy those ballots” due to the FOIA request, according to the Gongwer article which can be viewed here.

The League has received numerous inquiries from members seeking direction on how to handle the FOIA request. The League also encourages members to consult their local municipal attorney on this matter. If the local municipal attorney has questions they can contact the League’s General Counsel Chris Johnson at 734-669-6305 or cjohnson@mml.org.

The issue has received significant coverage from media statewide. Here are some of the articles:

Detroit News: Voting group behind mystery requests in Michigan

Detroit Free Press: Mystery group wants copies of all Michigan’s 2016 presidential ballots

Mlive.com: Secretive group bombards Michigan clerks with request for 2016 ballots

The Oakland Press: Oakland County clerks receive large, detailed FOIA request for November 2016 ballots, other materials

Gongwer News Service: FOIA Requests From Unknown Group Sent to Clerks for 2016 Ballots

MIRS News Service: Mysterious FOIAs Asks Local MI Clerks for All 2016 Ballots

Daily Press, Escanaba: City ponders request for 2016 ballots

Ludington Daily News: Local officials respond to FOIA from ‘Emily’

WKZO.com: UPDATE: Who is Emily and what does she want?

Here is the special news update from the Michigan Bureau of Elections on this FOIA request:

“Emily FOIA Request”

The Bureau of Elections has received numerous questions in regards to the “Emily FOIA request”.  We understand that this request is quite daunting, and we want to clarify what we can with regard to Michigan Election Law.  However, beyond election law, it is still very important that you work with your local legal counsel and FOIA coordinator, to properly comply with this request.   

  • Review the Attorney General’s Michigan Freedom of Information Act pamphlet.    
  • FOIA affords local jurisdictions the option to ask for an extension of time (see page 6 of the AG pamphlet).
  • FOIA also allows the local jurisdiction to prepare a fee estimate and ask for a deposit of up to 50% of the fee up front (see page 7 of the AG pamphlet) before making any copies. Preparing a fee estimate is highly recommended.
  • The fee estimate should include all work that is required to ensure the security and proper handling of ballots in order to make copies.
  • If a deposit is received, please make a copy of the check and email it to MDOS-ElectionsFOIA@michigan.gov.
  • Do not lose sight that preparations for the November election must come before all else. Communicate with the requester the amount of time it will take to complete the request given all of the other duties that must be performed during this time. 

Final reminders regarding the 22-month retention period and the chain of custody memo.  Please note: 

  • The 22-month period is up on September 28, 2018 – 22 months after the certification of the November 2016 election. 
  • If a FOIA request for the ballots has been received before that date, ballots may not be destroyed until after the request is fulfilled.
  • Original voted ballots may not be turned over to the requestor (or anyone else) once the retention period has run out.  The original ballots must be destroyed after the request has been fulfilled and the retention period has expired.
  • A 3rd party may make copies after the retention period has elapsed, but local clerks must  maintain control of the ballots – i.e., ballots may not be turned over to another offsite party.  Local clerks are required to supervise the process to ensure no changes are made to the ballots during copying.  

The Detroit News (and other sources) have potentially uncovered the origin of this request.

We appreciate all of the collaboration between clerks and the assistance you provide each other in order to comply and prepare for an uncommon request.  We have a great clerk community in Michigan! 

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