Yesterday I wrote about the absurdity of the City Commissioners office deciding that, despite common sense and a mission statement that includes: "reporting Unofficial Election Results for Philadelphia County."
So, following our theme of open government, I sent a Open Records Request (pdf of the letter here) to the City Commissioners Office, as well as to other interested parties. My hope is not that they give us a password, but that they simply get rid of the passwords. If they do simply give us a password, I am going to send it far and wide, and post it here.
There is absolutely no justification for a Commissioners Office to password protect election returns, when reporting those returns are one of the only functions it has.
The text of the letter is below:
May 2, 2008
VIA FAX
Margeret Tartaglione, Commissioner
City Hall, Room 130
Philadelphia PA, 19107
Fax: (215) 587-9107Joseph Duda, Commissioner
City Hall, Room 134
Philadelphia, PA 19107
Fax: (215) 686-3472Anthony Clark, Commissioner
City Hall, Room 132
Philadelphia, PA 19107
Fax: (215) 686-3947Re: Access to Philadelphia Election Returns
Dear Commissioners Tartaglione, Duda and Clark:
I am a Philadelphia resident, living in the 5th Councilmanic District. Recently, I tried to view unofficial Philadelphia election returns on the City Commissioners' taxpayer-funded website. I was unable to view the returns because, as you undoubtedly are aware, the election returns are password protected. I believe hiding these returns from the general public violates the mission statement of the City Commissioner's office, any basic notion of a democratic open government, and the Pennsylvania Open Records law. See 65 P.S. § 66.1 et seq.
Hiding election returns from any citizen who wishes to view them is, to put it mildly, an odd stance from an elected body whose mission statement includes "...reporting Unofficial Election Results for Philadelphia County." Password protecting election results is not only antithetical to open government, but to democracy itself. Therefore, I request an immediate removal of the password protection on your website, so that any Philadelphia citizen can examine Philadelphia election returns. Alternatively, if you choose to only provide me with a user name and password to the site, I will then proceed to share that password with the general public.
It is my understanding that you currently charge for electronic access to these records. Charging citizens for access to the results of elections is a curious position for an office whose publicly-funded purpose is to ensure free and fair elections. There is no sensible reason- nor any legal justification - for privileging only certain individuals or organizations with access to voting returns, nor for charging for that access. There can be no record more basic or in need of public examination than the vote.
Please feel free to contact me via email with any concerns.
Sincerely,
/s/
Dan Urevick-AckelsbergCC: Mayor Michael Nutter
CC: State Representative Babette Josephs, Chairwoman, House Committee on State Government (via email)
CC: Joshua Harman, Assistant City Solicitor (via email)
CC: Councilman Darrell Clarke
CC: Councilman Wilson Goode, Jr. (via email)
CC: Councilwoman Maria Quinones Sanchez (via email)
CC: Councilman Bill Green, III (via email)
CC: Councilman Bill Greenlee (via email)
CC: Councilman James Kenney (via email)
I am curious to know how
I am curious to know how much the Commissioners charge for access to the returns. Just so everyone knows, the Commissioners had a budget of $8.4 million last year. About half of that was used for employee compensation and $3.1 million was used for the purchase of services.....
---
Check out my website!
Public Records
They can charge a fee if (1) the information is accessible by other means (e.g. by going into the office to review it) and (2) the fee is reasonable.
If either of these requirements isn't met, the limited access violates PA's open records law.
I think they want to open it up
Additionally, they can only make those charges if they first collect it in paper. If they are fulfilling the duty of their office electronically anyway, they cannot.
Plus, I think they would like to save the embarrassment and the bad press. Because there is another request we can definitely make of the Commissioners office- how many people they have given passwords to, how many users they have charged, what those charges are, and of course, how many users they have given passwords to for free, and what that justification was.
I doubt they want to show that they have given free access to their buddies, while refusing everyone else.
I agree that the information
I agree that the information should be available to everyone free of charge. But state law specifically permits imposition of a reasonable fee to access electronic records. If the records aren't available in paper form, a party requesting them can't be denied access to them, but can be required to view and duplicate them at the office of the agency responsible for retaining them.
It would be interesting to know how much money the Commissioners' office has taken in from user fees. (Also to know how many passwords have been given away, though records on that probably don't exist.) If there's no relationship between the income generated and the costs of maintaining the system then, sure, there's an argument that the user fees violate state open records law. But if that's not the case, the practice of password protecting election returns would appear to be perfectly legal. Wrong, perhaps, in terms of policy, but still legal.
$5K?
A previous poster suggested that media outlets gets charged ~$5k fee for electronic access. That's not even remotely near a "reasonable fee".
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
"Reasonable" in this context
"Reasonable" in this context means bearing some relationship to the costs of providing the information. In other words, the fees can't be so high as to result in a profit to the agency.
Five thousand dollars does sound extraordinarily high. But I don't know anything about the costs of creating, updating and maintaining the election results website, so don't have any basis for judging what's "reasonable."
My point is simply that imposition of a user fee to access electronic records isn't necessarily illegal. It can be illegal, and may be in this case. But it's unfair to reach that conclusion and accuse the Commissioners' office of violating the law without more information.
They really want to give the info away
And as I said someone can only charge if they first are fulfilling their duty in a non-electronic manner. If, for example, they input these electronically in the first place, then they have no leg to stand on.
Second, these are election results, in a democracy, with an office whose friggin mission is to oversee elections. I don't think much of open records laws deal with election results, because the idea that government is charging for them is pretty ridiculous. We sent the request to Babette for a reason- because we think as the chair of the Committee on State Government she will be pretty interested in taking a closer look at what is going on here.
Third, again, just in terms of realpolitik- in terms of saving face, if the office denies the request, then the next request will be worse for them. Because, what we also suspect is is that some people (the media) pay a lot of money, while others (connected people) get the info for free. If they keep their system, the next step is that they are going to have to detail who paid them, how that relates to cost, who got the information for free and why, etc. I don't think the commissioners want to answer why, if they are charging people for these results, certain folks got them for free.
That would open a whole other can of worms, right? If you are charging some people for something (and ridiculous as it is, establishing a price for City services), and then you are giving that information to free for your friends... you are a lawyer, and smart...
Perhaps we should be blunt
And as always, I'm the man for the job.
Making the election results automatically available electronically for all is tremendously useful for potential candidates considering a run for office as a challenger. It makes it possible for potential challengers to do detailed analysis of recent elections while the information is still "fresh" to see what worked and what didn't. It helps a potential candidate make a more educated choice about how to run if they are considering.
Having to go in person to pick up the results helps tip the ballance to incumbents if for example a clerk can see who requested the results and pick up the phone and call said incumbents and say "You will never guess which known supporter of XYZ just stopped by and asked for some election results".
People run for office for a number of reasons. Most often its because the candidate legitimately believes they can do a better job but sometimes its to force the incumbent to do a better job or to confront a pressing issue the incumbent has avoided. Sometimes its mix of a lot of the latter with a little bit of the former. Regardless, there is a pretty good case to be made that challenged races make for more responsive incumbents.
I'm sure everybody involved with this conversation gets these basic facts but as always if you need someone to underline the obvious look no further than to me.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
Councilman Kenney's Office Responds
Just a quick update, about one hour after I sent the letter, I got a call from Councilman Kenney's office that they would help us out with the request.
City Commissioners seeking $$$ from Council
Just wanted to draw attention to a brief paragraph in Marcia Gelbart's story about the budget negotiations: