One can’t simply write on a document saying it isn’t subject to government open records laws, give it to an elected official and then claim that document isn’t open to the public. Doing so is antithetical to a democracy, county officials and open government experts said Monday.
But that’s exactly what Mesa County Clerk Tina Peters and her supporters did when they claimed that an anonymous report that falls far short of showing that the 2020 general election was somehow compromised that Peters gave to commissioners Friday was not subject to the state’s open records laws.
In the title to a cover letter to that report from Peters to Mesa County Commissioners Janet Rowland, Scott McInnis and Cody Davis, the embattled clerk who is facing possible criminal charges and a lawsuit to remove her as the county’s election chief wrote: “Confidential Legal Documents Exempt from Colorado Open Records Act.”
In an email to commissioners two days later and after the report was mentioned in an article in The Daily Sentinel, Peters admonished the commissioners for turning it over to the newspaper.
“Out of courtesy to you, I brought you the report first,” Peters wrote Sunday morning. “I had not even read it until last night. I want to know which of you straight away released it to the Sentinel? You 3 are the only ones who have it.”
Actually, that isn’t true.
Either Peters or others involved in the report — which show blurry images of an alleged backup of election computers in Peters’ office that are part of a local, state and federal criminal investigation — also said they sent copies of it to Mesa County District Attorney Dan Rubinstein, who is heading up one of those investigations.
The report also was included as an exhibit in a public court filing by Peters’ own attorney, former Secretary of State Scott Gessler. It was part of his response brief to the Secretary of State’s Office lawsuit against Peters and Deputy Clerk Belinda Knisley to bar them from overseeing the fall election.
While there are exemptions to the Colorado Open Records Act, none of them were cited by Peters nor anyone else. Such exemptions include working documents or material between an attorney and a client.
And even if the report falls under such exemptions, Peters waived any right to keep it secret when she turned them over to elected officials and included them in a court filing, said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
“The document apparently was made or acquired by the clerk, but it was also obtained, and then therefore maintained, by the commissioners, who made it public and the clerk’s attorney made it public,” Roberts said. “So, for them to now argue that it is not public doesn’t make a whole lot of sense.”
All three commissioners admonished Peters for her attempts to admonish them, saying they are required by law to turn over any public document to anyone who asks for it.
“You can’t just stamp a document not subject to CORA at the top and magically make a public document private. It doesn’t work that way,” Rowland said, adding that some members of the media asked for a copy of the document before she even knew it existed.
“The history of the clerk will read like she thinks some rules apply to everybody and some rules that apply to everybody don’t apply to her,” McInnis added. “You can’t go around and say, ‘I’m an elected official, but I don’t want to be transparent.’ You don’t get to stamp on a document, ‘This is not subject to CORA.’ Her comments in regard to this, frankly as usual, come from one side.”
Peters, however, doesn’t agree, and told commissioners as much.
“I wanted you all to be prepared,” she wrote in her email. “I will reconsider any further trust or sharing of information.”
Mcinnis said not long after he received Peters’ email, he got another one from someone who identified him or herself only as email@example.com that was laced with threats and profanity, but who also seemed to know about the report and how many elected officials received it.
“Part of a criminal investigation and one of you gave it to the Sentinel so they can botch the information,” that email read. “Just remember this (expletive). There are tens of millions of pissed off Americans in this country because you worthless (expletive) can’t be honest. Carma (sic) does come full circle and will come back to you at some point.”
Rowland said she doesn’t understand how some people can clamor for transparency and then be upset when things are transparent.
Scott, Rowland and Commissioner Cody Davis said that because of all this, they are going above and beyond to ensure to voters that the county’s upcoming election will be a secure one.
McInnis said having four additional verifications of November’s election results, intended to assure voters about the election process, will cost the county in excess of $500,000, not counting any unknown attorneys’ fees that likely will come later.
McInnis said the county is doing all that while critics continue to shift focus on what might be wrong with the election system, all along offering no tangible proof that anything really is wrong.
“I’m afraid all of us are being played like a piano,” McInnis said. “At first, the complaints were that there was fraud in Mesa County, and that caused the results of the election to be fraudulent. Then the issue changed. It was defective computers. Now all of sudden I’m beginning to see a shift ... ‘cause that’s not holding water. Now, it’s the Secretary of State. We’re seeing goal posts change with a different argument every week.”
The report, which doesn’t say who authored it but other filings by Gessler say it was written by forensic cyber expert Doug Gould, includes the same hard-drive images allegedly taken before and after a trusted build software update in May.
It claims that 28,989 files were deleted, but while it acknowledges that other files were added, it doesn’t say how many. The report, which Peters said she commissioned and calls proof that she acted properly, also doesn’t acknowledge that it is common for some data files to be deleted in any software or operating system upgrade because they are replaced with, well, upgrades.
The “trusted build” upgrades are routine annual events designed to update software. They are done in person in each of the state’s 64 counties by workers in the various clerks’ offices, and officials with the Secretary of State’s Office, along with technical workers for Dominion Voting Systems, which 62 of the state’s 64 counties use.
Each county also has maintenance and licensing contracts with Dominion because, as with all software regardless of computer system, users don’t own that software, but merely are licensed to use it.