The President’s new commission on election integrity has asked every State and the District of Columbia for extensive voter data.
To create this national voter database — a seeming federal extension of the Interstate Voter Registration Crosscheck — the commission wants full names, addresses, dates of birth, partial social security numbers, voting histories, and even felony records (hopefully including each State’s laws about post-felony voting – or in Maine and Vermont, the right to vote while still incarcerated).
Commission vice-chair Kris Kobach, a staunch Voter ID proponent and Kansas gubernatorial candidate, said the expansive request for voters’ most intimate data includes only publicly-available information.
So let’s kill two proverbial birds with one stone. Let this commission seek those “public” records under each State’s public records laws, and experience what you and I do when we ask for “publicly-available” government records.
Access to information is essential to self-governance. Without accurate and current information, the people cannot make the informed decisions that a Republic needs to survive.
So finally, in 1966, Congress established the federal Freedom of Information Act of FOIA.
The FOIA opened most U.S. executive records to public inspection, unless those records are specifically exempted or completely excluded from disclosure. Deadlines for responses were set. And the idea that records are presumed to be public, unless a good reason exists to keep them secret, began to develop.
But that is not how the FOIA actually works.
Across both Parties’ administrations, mandatory deadlines have been treated as suggestions. The first response, due within twenty days of the request, is frequently just a form letter saying that the agency is backlogged, and the request will be answered in the order it was received.
Electronic requests have turned FOIA use into a mere seconds-long process, driving the numbers of requests (and backlogs) up, and further slowing response times.
Combined with budget restrictions, requesters not wanting (or able to) go to court can wait years for a response. Even Congress-mandated updates to agency regulations were unfulfilled as of March 2017.
Even when responses arrive, a list of claimed exclusions and exemptions limits what the public will see. Ongoing law enforcement investigations and state secrets are wholly excluded from public view. Invasions of personal information, also protected by the Privacy Act, are exempt from release, as are records reflecting the agency’s “deliberative processes,” or internal personnel matters.
The nine federal exemptions have been litigated into such a series of subsets that even some lawyers need other lawyers familiar with FOIA law when seeking federal records.
Suppose the records sought are not exempt from disclosure, and diligent staff can quickly fulfill your request. Public records are free only to a narrow class of requesters deemed by the agency to qualify for fee waiver.
The two hours searching and 100 pages are free. But search time and production costs exceeding these limits cost the requester. And any estimated cost over $250 – often into the thousands or tens of thousands of dollars – must be paid before the search even begins.
Public information is too often kept away from the public through the practical denial-by-fee.
Each of these rights is enforceable in court – for those who can pay the filing fees, and retain the lawyer that markedly improves odds of success. Citizens do sometimes win in federal court on their own.
But most simply do not have the time, let alone the training and knowledge, to compete with seasoned Justice Department litigators and their full staff of paralegals and secretaries.
State responses are also regularly delayed. Exemptions are upheld by the very agency claiming them, leaving only a judge to open inspection – maybe – after the citizen pays for, and waits out, a court case. Search and reproduction costs price many average citizens out of responses.
You may have a right to the information, but relatively few have the expertise and resources needed to actually access the public’s business.
These problems will not stop the Commission on Election Integrity. The President’s Commission ostensibly enjoys the White House’s full cash and legal resources. But hopefully going through the open records process will illustrate for the White House, and others, what a frustrating joke “open records” can be on the average citizen.
Most importantly, public records requests will ensure that only public data is made available to this national database controlled by the U.S. Government.
Anyone who balked at a national identification card or a national firearms registry should certainly be concerned about a national voter roll.
Our rights to privacy and to a private ballot are every bit as important as our right to bear arms.
EJ Hurst, II is an attorney based in Durham, N.C., who practices in the federal court system. He concentrates on criminal sentencing, appeals, and habeas corpus matters, as well as the Freedom of Information and Privacy Acts.
The views expressed by contributors are their own and are not the views of The Hill.