23-ORD-211
August 11, 2023
In re: Teresa Gilbert/Casey County Clerk
Summary: The Casey County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when he failed to respond to a request to inspect
records within five business days. However, the Clerk did not violate the
Act by not producing a record that did not exist at the time of the
request.
Open Records Decision
On May 23, 2023, Teresa Gilbert (“Appellant”) emailed two requests to the
Clerk to inspect various records relating to the May 2023 primary elections.1 Having
received no response by June 1, 2023, the Appellant initiated this appeal.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” After this
appeal was initiated, the Clerk responded to the Appellant’s requests, but did not
explain why he failed to do so within five business days of receiving the request.
Accordingly, the Clerk violated the Act.
In his belated response to the Appellant’s requests, the Clerk provided a
memorandum issued by the State Board of Elections (“SBE”) to all County Clerks on
1
Specifically, the Appellant sought video surveillance tapes of the election machines from 6:00 p.m.
on May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023 primary” election.May 22, 2023, advising them about the same open record request submitted to county
clerks across the Commonwealth. See, e.g., 23-ORD-145; 23-ORD-147; 23-ORD-148.
The SBE advised that the county clerks “are not in possession of any digital record of
voter rosters.” Rather, the “Final Completed County Roster Output File” would be
made provided to the clerks by their respective vendors. The Appellant contests that
claim and argues the Clerk can retrieve the electronic voter-signature rolls through
ePulse, which is the electronic election management system used by the county
clerks. In support of her claim, the Appellant provides an email from the vendor
advising the clerks not to pull “reports” from ePulse. Moreover, the vendor advertises
ePulse as “an all-inclusive election management suite designed to give administrators
real-time access to monitor their election as a whole.” More specifically, ePulse
“allows for administrators to oversee the operation of individual precincts and Poll
Pads [i.e., the tablets voters use to sign] including battery life of the device, average
check-in times, number of ballots issued or spoiled; all the while ensuring the election
authority can directly contact poll workers via video or text message for speedy
trouble resolution.” Finally, the advertisement concludes, “ePulse aims to be as
intuitive and user-friendly as the Poll Pads themselves. The simple-to-view
dashboards give the user an overview of election data essentials which can be easily
digested and exported into customizable reports.”
Following the Appellant’s reply2 on appeal, the Office sought additional
information from the Clerk regarding the “Final Completed County Roster Output
File” and the reports available to the county clerks through “ePulse.” But before
addressing the Clerk’s response to that inquiry, the Office notes its decision in 23-
ORD-210, which is being released simultaneously with this decision.
In 23-ORD-210, this Appellant sought a similar record from a different county
clerk. In that decision, the Office explained recent changes to the Commonwealth’s
elections laws that led to the certification and use of “e-poll books,” or more
specifically, “electronic device[s] capable of holding a file of voter data and related
information for use in identifying registered voters prior to a voter’s receiving or
casting a ballot, and allowing a voter to electronically sign in on an electronic
registered voter roster in lieu of signing a paper registered voter roster.”
KRS 17.001(8) (defining “e-poll book”). Upon receiving an appropriate application, the
2
On June 13, 2023, the Appellant attempted to file a new appeal alleging subversion of the Act
under KRS 61.880(4) based on the Clerk’s assertions in his belated response. However, the Appellant’s
subsequent correspondence only contests the Clerk’s response to the request for the electronic voter
signature rolls, not the video surveillance. Rather than processing the Appellant’s subsequent
correspondence as a new appeal, the Office considers it to be a reply in support of this appeal.State Board of Elections (“SBE”) is required to examine and certify for use any e-poll
book that meets all legal qualifications. KRS 117.379(2)(c). In 23-ORD-210, the Office
further explained that “SBE is the owner and official custodian of the
Commonwealth’s voter registration database, not the county clerks. See
KRS 117.025(3)(a).” Moreover, the SBE must also “[s]elect the required format for
any voter registration list provided to a county clerk including those intended for use
in an e-poll book product.” KRS 117.025(3)(d) (emphasis added).
In 23-ORD-210, the Clerk provided evidence from the vendor supporting his
claim that the e-poll book signature logs did not exist at the time of the request
because the vendor had not yet provided them in the format required by SBE. Here,
the Clerk provides similar evidence, but from SBE. Specifically, in a memo by SBE to
the Clerk, SBE acknowledged it had provided the Clerk’s vendor with “voter roster
data” for Casey County. SBE further stated the vendor uses that voter roster data
and “the ePulse interface to populate [Casey County’s] e-Poll Books with the
necessary roster data for the election. The e-Poll Books are then deployed for use
throughout the various days of voting. When the election is over, [the] vendor sends
the roster data back to the State Board of Elections along with any additional
information regarding voter check-ins that has been recorded during voting.”
SBE further contrasted the reports available in ePulse from the official e-poll
book signature logs documenting those who cast a ballot at the May 2023 primary
election, stating:
The reports available to [the Clerk] from the ePulse interface for an
election are custom reports that authorized users in [the Clerk’s] office
may create that allow[s him] to glean information relevant to election
administration in [his] specific locale. They are not automatically
created reports from ePulse, KNOWiNK, or Harp Enterprises; they do
not exist until a county election administrator, such as [the Clerk],
chooses to create them. Alternatively, the “Final Roster” and
“Supplemental” report provided to [Casey County] by Harp Enterprises
for download are the specific post-election reports required by the State
Board of Elections to be produced in order for an e-Poll Book vendor to
be certified in Kentucky. These reports must be created by [the] vendor
and provided to [the Clerk]. They are only provided in the .PDF format
and [Casey County] may not choose what specific information fields are
included in them.Thus, both the Clerk’s vendor in 23-ORD-210, and SBE here, have confirmed that the
official e-poll book signature log cannot be generated from the ePulse system and
must instead be provided by the vendor to the county clerks in the format SBE has
designated under KRS 117.025(3)(d). Accordingly, like the Clerk in 23-ORD-210, the
Clerk here has carried his burden that the record the Appellant requested did not
exist at the time of her request, and it still does not exist in the specific format she
has requested.
It is immaterial whether the ePulse system can generate custom reports. It is
also immaterial if it can generate those custom reports in .csv or .xlsx. The Appellant
did not ask for “custom reports,” and the Act would not require the Clerk to generate
them even if she had. See KRS 61.874(3) (“If a public agency is asked to produce a
record in a nonstandardized format, or to tailor the format to meet the request of an
individual or a group, the public agency may at its discretion provide the requested
format”); see also 23-ORD-093 (“if an agency does not maintain a pre-existing ‘query,
filter, or sort[ing mechanism] capable of extracting the requested information,’ the
request may be denied in the agency’s discretion under KRS 61.874(3)”); 12-ORD-028
(same); 05-ORD-116 (same). Rather, the Appellant asked for the “complete voter sign-
in rosters for every precinct, absentee, early, and election day voters from” the
primary election (emphasis added), which did not exist until it was provided to the
Clerk by the vendor according to the format established by SBE.
In sum, the Clerk violated the Act when he failed to respond to the Appellant’s
request within five business days. However, the Clerk has carried his burden of
showing that the requested record did not exist at the time the Appellant submitted
her request, and that no record in her preferred format exists. While the Appellant
may indeed inspect and obtain copies of the now-completed, and therefore “the
official,” e-poll book signature logs, the Act does not require the Clerk to tailor that
record to the format the Appellant desires. KRS 61.874(3).
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#228
Distributed to:
Teresa Gilbert
Casey Davis