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Michigan Man Sues to See Election Records After His Freedom of Information Requests Were Denied


Michigan Secretary of State Jocelyn Benson (right) and Michigan Attorney General Dana Nessel (left) wait to speak at a United Auto Workers rally after the Detroit Labor Day Parade in Detroit, Mich., on Sept. 4, 2023. (Bill Pugliano/Getty Images)


Reprinted with permission from The Epoch Times


By Steven Kovac  |   March 22, 2024

 

Michigan’s Democrat Secretary of State Jocelyn Benson is being sued for working with local officials to stonewall a citizen’s efforts to access public election records from the Nov. 8, 2022 general and the May 2, 2023 primary elections.


Ms. Benson has a record of resisting transparency dating back to the 2020 presidential contest, after which she ordered local clerks to delete all electronic poll book (EPB) data from that election. In Nov. 2022, just days after the midterms, she ordered local clerks to deny public information requests to examine certain election data stored on their EPBs.

EPB files are an original public record and a component of the electronic voting system audit trail.

“When she (Ms. Benson) realized that some public officials were properly releasing this information under FOIA (Freedom of Information Act), she ordered them to delete the data,” claims Macomb County resident Michael Butz in a brief he filed in Macomb County Circuit Court on March 11, 2024.

Mr. Butz asked the court to deny “any interjection of responsibility” into this case by the secretary of state (SOS) and to deny the defendant municipal clerks’ rejection of his FOIA requests.


The memos and emails supporting Mr. Butz’s claims concerning Ms. Benson are attached to the brief.


Mr. Butz told The Epoch Times he is still awaiting the defendants’ response to his filing.

“Jocelyn Benson and her Michigan Bureau of Elections directors are violating Michigan and United States Codes and statutes with their unlawful election processes, procedures, and instruction manuals…In fact, the Michigan Court of Appeals recently agreed,“ Mr. Butz said. “These are ongoing acts of malfeasance against the people of Michigan.”

The Michigan Secretary of State’s Office said it does not comment or answer questions about ongoing or pending litigation.


The case was filed against municipal election officials from several Macomb County localities for allegedly violating Mr. Butz’s right under FOIA to inspect and copy public election information.


Though Ms. Benson is not a named defendant in the Butz lawsuit, she successfully petitioned the court to designate her as a defendant-intervener.


The brief alleges that Ms. Benson interfered with the clerks’ responses to Mr. Butz’s initial FOIA requests by directing local officials as to what data should or should not be provided to him.


Not Up to the SOS to Decide, Man Argues


According to Plaintiff Butz, the responsibility for the decision to reject a FOIA request lies with the local clerks, who are mandated by statute to disclose public information and are liable for any violations of the act.


The plaintiff cited legal precedent showing that Ms. Benson’s regulations, directives, guidance, opinions, memos, emails, and statements “cannot serve as the basis for FOIA denials,” because they are not statutes, and therefore, “the only basis for denial of a FOIA request must be based on the express language of the statute’s exemptions.”


According to the brief, “Benson is simply not authorized by law to prohibit public officials from fulfilling their constitutional and statutory duties of disclosing public information under FOIA. Defendants cannot, therefore, say, as they have, that they are ‘waiting’ on the research and guidance from the SOS…to tell them what to withhold, what exemption applies, or what exemption might be asserted.”


Federal law requires all election records to be retained and preserved for 22 months, and Michigan law requires they be kept for 24 months. The retention time for used ballots in state and local elections is 30 days, if the ballots are not subject to recount or an ongoing investigation or court order or SOS order.


“The public records derived from the EPB must, by law, be retained in their entirety and be accessible to the public,” the brief said.


By following Ms. Benson’s order to delete the EPB data, local officials may have violated federal and state laws.

Mr. Butz told The Epoch Times, “The Nuremburg Trial excuse ‘I was just following orders’ does not cut it.”

Michigan law states, “It is the public policy of this state that all persons…are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees…The people shall be informed so that they may fully participate in the democratic process.”


Discrepancies Found 


The Butz brief states that in the jurisdictions that complied with his FOIA request, the data obtained indicated a 12 percent variation between the local records of who voted and the state’s records.


When the discrepancies were questioned by clerks and citizens, “SOS Benson unilaterally, and without legal authority encrypted” the EPB data in order to “conceal” it from the public, and so that clerks cannot access it to reconcile it, the brief alleged.

According to the brief, as of the 2022 elections, all files on the USB Drive for the EPB flash drive were fully encrypted.


Mr. Butz wrote his latest FOIA requests in such a way so as to eliminate the local governments’ justifications for rejection—the privacy of registrants, proprietary and copyright concerns of the software vendors, and cybersecurity worries of the State Board of Elections. He specifically stated in his requests that he was not asking for any of these things and would be satisfied if they were redacted.


According to the brief, “Lawful redaction of the appropriate items is expected, but BOE (state Bureau of Elections) is not allowed to define what is acceptable FOIA material in opposition to statute.”


Mr. Butz’s requests were denied in total, so he sued.


All Non-Exempt Information Must Be Provided 

 

“The blind obedience of local clerks to the unlawful directives of the BOE is the actual reason that the FOIA requests presented by Michael Butz were denied,” according to the brief.


Michigan law states that, if exempt information is combined with non-exempt information, the public official cannot use the excuse that redaction or separation is not possible, but “shall separate the exempt and nonexempt material,” the brief said.


According to the plaintiff, Ms. Benson and the BOE suggest citizens requesting EPB data settle for a copy of the Voter List Report (VLR), generated on election night, in place of the EPB History file. The problem is the VLR does not contain all the information that is available on the History file, such as same-day voting data and internet connectivity, according to Mr. Butz, who is a career computer expert.


The brief also noted that, due to several statewide voter registration services conducted by the SOS, such as the driver registration program, the statutory requirement that voter registration information be entered and filed in the public records of the relevant local official is precluded by the state’s digital practice. This means that the local clerk, who is responsible and liable for the accuracy of the names and addresses of the registrants, is effectively cut out of the process and that there is “no paper trail,” the brief contended.


Mr. Butz told The Epoch Times that he would not settle for anything short of full disclosure of the information sought in his lawful FOIA request.


A status conference for the case is scheduled for May 28.


 

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The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Michigan Fair Elections.

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