Allegheny Cnty. v. Van Bibber
Allegheny Cnty. v. Van Bibber
2024 WL 5135011 (Pa. Commw. Ct. 2024)
December 17, 2024
Ceisler, Ellen, Judge
Summary
The Court of Commonwealth ruled that the images of cast mail-in ballots from the 2020 General Election are public records under the Pennsylvania Election Code and can be obtained through Right-to-Know Law requests. The Court rejected the County's argument that completed ballots are protected from public inspection and noted that the County's change in position was not supported by the plain language of the Election Code.
Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.
Allegheny County
v.
Matthew Van Bibber, Appellant
Allegheny County
v.
Patricia Weaver, Appellant
v.
Matthew Van Bibber, Appellant
Allegheny County
v.
Patricia Weaver, Appellant
No. 379 C.D. 2023, No. 380 C.D. 2023
Commonwealth Court of Pennsylvania
Argued:
October 09, 2024
FILED: December 17, 2024
Panel members:
Jubelirer, Renee C.,
McCullough, Patricia A.,
Covey, Anne E.,
Cannon, Christine F.,
Ceisler, Ellen,
Wallace, Stacy,
Wolf, Matthew S.
Ceisler, Ellen, Judge
OPINION NOT REPORTED
See Pa. Commonwealth Court Internal Operating Procedures, Sec. 414 before citing.
*1 In these consolidated matters, Matthew Van Bibber and Patricia Weaver (individually Van Bibber and Weaver, and collectively, Requesters) appeal the Court of Common Pleas of Allegheny County's (Common Pleas) March 24, 2023 and March 31, 2023 orders.[1] Through those orders, Common Pleas ruled that the Pennsylvania Election Code[2] prevented Requesters from using the Right-to-Know Law (RTKL)[3] to obtain images of mail-in ballots that had been cast in the 2020 General Election. We reverse.
I. Background
On March 18, 2022, Van Bibber submitted a request to Allegheny County (County) for “digital copies of the Allegheny County 2020 General [Election] ballots.” Reproduced Record (R.R.) at 40a. The County responded on March 25, 2022, by invoking its right to a 30-day extension, before the County's open records officer eventually denied Van Bibber's request on April 14, 2022.[4] Id. at 40a, 42a. Weaver then submitted her own, practically identical request to the County on April 19, 2022, which the County's open records officer denied on April 26, 2022.[5] Id. at 12a-13a. Therein, the officer explained that the records sought—which she characterized as “images of voted ballots” or “cast vote records”—are considered “contents of ballot boxes” and therefore “not viewable” pursuant to Section 308 of the Election Code, 25 P.S. § 2648.[6] Id.
Requesters then appealed these denials to the Office of Open Records (OOR) in early May 2022. Id. at 15a, 44a. In response, the County submitted an affidavit from David Voye, Manager and Open Records Officer of the County's Elections Division, in which Voye restated the County's position that Section 308 prohibited the release of cast ballots. Id. at 23a, 57a. OOR subsequently issued two substantially identical Final Determinations, through which it affirmed the County's denials in part and reversed them in part. Id. at 27a, 152a. Therein, OOR agreed with the County that images of ballots that are cast in person are the contents of ballot boxes, which therefore shields those ballots from RTKL requests by virtue of Section 308 of the Election Code. Id. at 25a-28a, 152a-53a. OOR also noted, however, that Section 1307-D(a) of the Election Code expressly states that “[a]ll official mail-in ballots” are “public records[.]” Id. at 28a, 153a (quoting 25 P.S. § 3150.17(a)).[7] Accordingly, OOR concluded images of cast mail-in ballots are not protected by Section 308 from disclosure to the public and that the County had to provide Requesters with such images upon request. Id. at 29a, 154a.
*2 The County appealed OOR's Final Determinations to Common Pleas, as to OOR's disposition of the cast mail-in ballot image issue.[8] In response, Common Pleas then convened a hearing on September 22, 2022.[9] At the hearing, the County argued that the Election Code shielded cast ballots against RTKL requests, regardless of whether those ballots were cast in-person or via mail. Id. at 177a-78a (citing 25 P.S. § 2648). Requesters countered that the General Assembly had expressly declared through Section 1307-D(a) of the Election Code that cast mail-in ballots are public records and, thus, had rendered such ballots obtainable through RTKL requests. Id. at 194a-97a.
The County also presented testimony from Voye. Id. at 201a, 204a. Voye recalled that he had received an email from the Commonwealth's Department of State on November 8, 2021, regarding RTKL requests for election records.[10] Id. at 225a. Through this email, the Department of State had advised Voye that its position was that the Election Code shields completed ballots from public inspection, regardless of whether those ballots are mailed-in or cast in-person at polling places. Id. at 208a. Voye recalled that, on the advice of the County's law department, the Elections Division had previously allowed one RTKL requester to view scanned images of ballots that had been completed by voters.[11] Id. at 223a-24a. However, the Elections Division had since adopted the Department of State's position that only blank ballots, not completed ones, were subject to public inspection. Id. at 209a. As a result, Voye had decided to deny subsequent RTKL requests for scanned images of completed ballots. Id. at 224a.
Common Pleas then issued two orders, on March 24, 2023, and March 31, 2023, respectively, through which it reversed OOR's disposition of the cast mail-in ballot issue. Requesters then appealed each of these orders to Court shortly thereafter, whereupon we consolidated both appeals on May 5, 2023.
II. Discussion [12]
*3 Requesters challenge Common Pleas’ orders on two bases, which we summarize as follows. First, Requesters are entitled to the sought-after images of cast mail-in ballots, because such images qualify as public records pursuant to Section 1307-D(a) of the Election Code. Requesters’ Br. at 12-16. Second, even if Section 1307-D(a) does not apply to these images, it remains that Section 308's protections only apply to cast ballots while they are physically held in a ballot box or voting machine; once those ballots are removed therefrom, they (and images thereof) constitute public records that can be obtained through RTKL requests. Id. at 16-19.
Generally speaking, the purpose of the RTKL is “to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials[,] and make public officials accountable for their actions.” Off. of Governor v. Raffle, 65 A.3d 1105, 1107 n.1 (Pa. Cmwlth. 2013). Accordingly, local agencies are statutorily required to “provide public records [to individuals who request them] in accordance with [the RTKL].” Section 302(a) of the RTKL, 65 P.S. § 67.302(a). However, that does not mean that all local agency records are “public” and eligible for dissemination upon request. Per Section 305(a) of the RTKL:
A record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record. The presumption shall not apply if:
....
(3) the record is exempt from disclosure under any other [f]ederal or [s]tate law or regulation or judicial order or decree.
65 P.S. § 67.305(a); accord Section 102 of the RTKL, 65 P.S. § 67.102 (defining “public record” in relevant part as “[a] record, including a financial record, of a Commonwealth or local agency that ... (2) is not exempt from being disclosed under any other [f]ederal or [s]tate law or regulation or judicial order or decree”). In other words, the RTKL's presumption that all records possessed by a local or state agency are public in nature, and are thus disclosable to a requester, yields where a statutory exemption exists for a certain kind of record.
Through their first argument, Requesters posit that Section 1307-D(a) of the Election Code dictates that images of cast mail-in ballots are public records. This assertion presents a pure question of statutory interpretation; thus, “our standard of review [here] is de novo, and our scope of review is plenary and non-deferential.” Crown Castle NG E. LLC v. Pa. Pub. Util. Comm'n, 234 A.3d 665, 674 (Pa. 2020).
The object of statutory construction is to ascertain and effectuate legislative intent. 1 Pa. C.S. § 1921(a). In pursuing that end, we are mindful a statute's plain language generally provides the best indication of legislative intent. See Com[.] v. McClintic, ... 909 A.2d 1241 ([Pa.] 2006). Thus, statutory construction begins with examination of the text itself. [Se.] Pa. Transp. Auth. v. Holmes, 835 A.2d 851 (Pa. Cmwlth. 2003).
In reading the plain language of a statute, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” 1 Pa. C.S. § 1903(a). Further, every statute shall be construed, if possible, to give effect to all its provisions so that no provision is “mere surplusage.” 1 Pa. C.S. § 1921(a).
Moreover, although we must “listen attentively to what a statute says[,] [o]ne must also listen attentively to what it does not say.” Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., ... 788 A.2d 955, 962 ([Pa.] 2001). We may not insert a word the legislature failed to supply into a statute. Girgis v. Bd. of Physical Therapy, 859 A.2d 852 (Pa. Cmwlth. 2004).
*4 Malt Beverages Distribs. Ass'n v. Pa. Liquor Control Bd., 918 A.2d 171, 175-76 (Pa. Cmwlth. 2007). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b). “However, if we deem the statutory language ambiguous, we must then ascertain the General Assembly's intent by statutory analysis, wherein we may consider numerous relevant factors.” Bowman v. Sunoco, Inc., 65 A.3d 901, 906 (Pa. 2013) (citing 1 Pa. C.S. § 1921(c)). “An ambiguity exists when language is subject to two or more reasonable interpretations and not merely because two conflicting interpretations may be suggested.” Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 510 (Pa. Cmwlth. 2014). Regardless of whether a statute is deemed ambiguous or not, our rules of construction forbid a court from adopting an interpretation that will produce “a result that is absurd, impossible of execution[,] or unreasonable.” 1 Pa. C.S. § 1922(1). Furthermore,
[w]hen construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections. Com. v. Mayhue, 639 A.2d 421, 439 (Pa. 1994). Statutory language must be read in context, “together and in conjunction” with the remaining statutory language. [Pa. Gaming Control Bd.] v. Off. of Open Recs., 103 A.3d 1276, 1284-85 (Pa. 2014) (citing Bd. of Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d 610, 622 (Pa. 2010)).
....
A fundamental principle in statutory construction is that we must read statutory sections harmoniously. Off. of Open Recs., 103 A.3d at 1284-85. Parts of a statute that are in pari materia, i.e., statutory sections that relate to the same persons or things or the same class of persons and things, are to be construed together, if possible, as one statute. 1 Pa. C.S. § 1932. “If they can be made to stand together, effect should be given to both as far as possible.” Off. of Open Recs., 103 A.3d at 1284 (quoting Kelly v. City of Phila., 115 A.2d 238, 245 (Pa. 1955)). In ascertaining legislative intent, statutory language is to be interpreted in context, with every statutory section read “together and in conjunction” with the remaining statutory language, “and construed with reference to the entire statute” as a whole. Bd. of Revision of Taxes, 4 A.3d at 622. We must presume that in drafting the statute, the General Assembly intended the entire statute, including all of its provisions, to be effective. 1 Pa. C.S. § 1922. Importantly, this presumption requires that statutory sections are not to be construed in such a way that one section operates to nullify, exclude or cancel another, unless the statute expressly says so. Cozzone ex rel. Cozzone v. Workers’ Comp. Appeal Bd. (PA Mun./E. Goshen Twp.), 73 A.3d 526 (Pa. 2013); Off. of Open Recs., 103 A.3d at 1284-85.
Tr. Under Agreement of Taylor, 164 A.3d 1147, 1155, 57 (Pa. 2017) (cleaned up).
The validity of Requesters’ first argument hinges upon the interplay between two aforementioned Election Code provisions: Section 308 and Section 1307-D(a). The former, Section 308, reads as follows:
The records of each county board of elections, general and duplicate returns, tally papers, affidavits of voters and others, nomination petitions, certificates and papers, other petitions, appeals, witness lists, accounts, contracts, reports and other documents and records in its custody, except the contents of ballot boxes and voting machines and records of assisted voters, shall be open to public inspection, except as herein provided, and may be inspected and copied by any qualified elector of the county during ordinary business hours, at any time when they are not necessarily being used by the board, or its employes having duties to perform thereto: Provided, however, That such public inspection thereof shall only be in the presence of a member or authorized employe of the county board, and shall be subject to proper regulation for safekeeping of the records and documents, and subject to the further provisions of this act: And provided further, That general and duplicate returns, tally papers, affidavits of voters and others, and all other papers required to be returned by the election officers to the county board sealed, shall be open to public inspection only after the county board shall, in the course of the computation and canvassing of the returns, have broken such seals and finished, for the time, their use of said papers in connection with such computation and canvassing.
*5 25 P.S. § 2648 (emphasis added). The latter, Section 1307-D(a), states:
All official mail-in ballots, files, applications for ballots and envelopes on which the executed declarations appear and all information and lists are designated and declared to be public records and shall be safely kept for a period of two years, except that no proof of identification shall be made public, nor shall information concerning a military elector be made public which is expressly forbidden by the Department of Defense because of military security.
25 P.S. § 3150.17(a) (emphasis added). The phrase “official mail-in ballots,” which is of critical import in this matter, is neither defined in this statutory provision nor anywhere else in the broader Election Code. It is thus facially unclear whether this term refers to completed ballots or uncompleted ballots. Even so, the meaning of this phrase is clear. All of the other items (applications, files, filled-out envelopes, lists, etc.) mentioned in Section 1307-D(a) refer to materials relating to the process that produces a completed mail-in ballot; it would be a strange thing, then, to believe that the General Assembly would have omitted those ballots themselves from this slate of covered materials. Furthermore, Section 1307-D(a) expressly restricts dissemination of identifying information; such concerns would not be present with regard to uncompleted ballots themselves, as such ballots obviously do not contain cast votes. Given this, the most logical reading of “official mail-in ballots” is that it refers to completed mail-in ballots, rather than those that are uncompleted.
This reading creates an apparent conflict between Section 308 and Section 1307-D(a). The former shields completed ballots and digital copies thereof from RTKL requests once those ballots have been deposited into a ballot box or recorded through a voting machine. See Honey v. Lycoming Cnty. Offs. of Voter Servs., 312 A.3d 942, 950-54 (Pa. Cmwlth. 2024), appeal granted (Pa., No 163 MAL 2024, filed Oct. 7, 2024). The latter, however, flatly establishes without qualification that completed mail-in ballots are public records. The conflict, therefore, is between the general terms of Section 308 and the more specific language of Section 1307-D(a). Per Section 1933 of the Statutory Construction Act of 1972:
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
1 Pa. C.S. § 1933.
In order to harmonize these ostensibly contradictory parts of the Election Code, we conclude that Sections 1307-D(a) ... of the Election Code create[s] [an] exception[ ] to Section 308's ballot protections. [This] exception[ ] establish[es] that completed ... mail-in ballots are to be treated as public records once those ballots have been removed from the ballot box or voting machine, and that those ballots can be obtained through an RTKL request as long as they follow the Election Code's rules of disclosure and do not include any information that identifies (or is reasonably likely to facilitate the identification of) the individuals who cast those ballots.
*6 Previte v. Erie Cnty. Bd. of Elections, 320 A.3d 908, 917 (Pa. Cmwlth. 2024), pet. for allowance of appeal filed (Pa., No. 230 WAL 2024, filed Aug. 29, 2024).
III. Conclusion
In light of the foregoing analysis, we conclude that Common Pleas erred by ruling that images of completed mail-in ballots are not public records that can be obtained through an RTKL request, and consequently reverse Common Pleas’ March 24, 2023 and March 31, 2023 orders.[13]
Footnotes
These orders are respectively dated March 23, 2023, and March 31, 2023, but each order was docketed the day after the date listed thereon.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
Under certain circumstances, Section 902 of the RTKL permits an agency to extend the permitted response time, which is normally 5 business days, by up to an additional 30 calendar days. 65 P.S. § 67.902.
In her request, Weaver sought “digital copies of all ballots counted for the November 2020 election for all races for Allegheny County in TIFF format” as well as “digital copies of all ballots in PDF format for districts in alphabetical order after Liberty-District 1 to but not including McKees Rocks Ward District 1.” R.R. at 12a. TIFF (an abbreviation of “tagged image file format”) is a digital image format that is “widely supported by image viewing applications.” Roger S. Haydock, Electronically Stored Information: What Hath God Wrought?, 6 WM. MITCHELL J. L. & PRAC. 2 (2013).
In relevant part, Section 308 provides that the records of “board[s] of elections, general and duplicate returns, tally papers, affidavits of voters and others, nomination petitions, certificates and papers, other petitions, appeals, witness lists, accounts, contracts, reports and other documents and records in its custody, except the contents of ballot boxes and voting machines and records of assisted voters,” shall be open to public inspection. 25 P.S. § 2648 (emphasis added).
Added by the Act of October 31, 2019, P.L. 552, No. 77 (Act 77).
Common Pleas subsequently consolidated these appeals on September 1, 2022. R.R. at 157a.
Voye was referring to an email message sent by Jessica Mathis, Director of the Department of State's Bureau of Elections and Notaries to the Commonwealth's county election officials. See R.R. at 278a-79a. Therein, Mathis explained the Department of State's position that the Election Code exempts from public inspection “the contents of ballot boxes and voting machines and records of assisted voters.” Id. (citing 25 P.S. § 2648). Mathis advised the officials that Section 308 “can be used to deny any request to inspect voted ballots, or to receive copies of voted ballots, or to examine voting machines, as the Election Code specifically exempts these records and equipment from public disclosure.” Id. (emphasis in original).
In William Towne v. Allegheny County (OOR Dkt. No. AP 2022-1975, filed Sept. 28, 2022), a requester sought from the County access to “scans of declaration envelopes for mailed-in ... ballots in the 2022 primary election(s),” as well as an opportunity to view the ballots’ original envelopes in person at the Elections Division's offices. The County initially denied the request, but informed OOR on the requester's appeal that it had decided to grant access. Id. Because the County did not contest the public nature of the requested records, OOR determined that it must provide them to the requester. Id.
When a case under the RTKL reaches this Court from a court of the common pleas, our standard of review is limited to determining whether findings of fact are supported by substantial evidence, or whether the lower court committed an error of law or abuse of discretion in reaching its decision. Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth. 2011). The scope of our review is plenary. Allegheny Cnty. Dep't of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1029 n.3 (Pa. Cmwlth. 2011).
We decline to reach Requesters’ remaining argument due to our resolution of these appeals in their favor.