By Teresa L. Benns
SAGUACHE —Elections activist Marilyn Marks has notified the Saguache Sheriff’s Office that she will resort to a court order to force compliance with laws demanding the county preserve remaining surveillance videos of the general election per state law.
Marks notified Norris of the pending court action when he responded to her Colorado Open Records Act (CORA) request saying that only recordings from Nov. 2-5 are available. The videos are monitored in the Saguache County Jail/dispatch area. Recordings from Nov.6 through Dec. 22 have been overwritten by the county’s continuous loop security system operated from the jail, according to Norris.
Marks requested copies of videos from “All areas in which election software is used, including but not limited to programming, downloading memory cards, uploadingmemory cards, tallying results, and results reporting.” These must be preserved from 60 days prior to the election to 30 days after the election according to Secretary of State’s Office (SOS) rules.
County Clerk Melinda Myers, in a security plan submitted to the SOS prior to the general election verified that Saguache County is a county with under 50,000 registered voters. According to SOS Rule 126.96.36.199 (b), counties in this category are required to “make continuous videosecurity surveillance recordings of…all areas,” as reported above. Myers signed a statement telling the SOS that all the required areas would be recorded by continuous video surveillance, not motion-activated surveillance.
The SOS does not consider motion activated surveillance as a “continuous” surveillance system, even when preserved, since in this type of system there are recording gaps. Important areas where election activities took place are not covered by the county’s system, particularly the vault area in the county clerk’s office where ballots are kept.
The rules state, “such recording must be in place at least sixty (60) days prior to the election and continuing through at least thirty (30) days after the election, unless there is a recount or contest. If a recount or contest occurs, the recording shall continue through the conclusion of all such activity.” A precinct tally took place Nov. 8 and a recount was conducted on Nov. 29, meaning that the recordings for these events were erased, according to Norris.
Recordings requested shortly after election
A bipartisan team went to the Sheriff’s Office Nov. 6 following the controversial retabulation to request preservation of the tapes from Nov. 2-5. The jailer backed up the system to preserve these recordings. Norris told Marks he was unaware of any obligation to preserve other recordings.
On Nov. 16, a local news outlet requested and received videos from the Sheriff’s Office for Nov. 2-Nov. 5, but requested videos covering the dates Nov. 2-8. A reporter was informed the Nov. 8 video showing the irregular precinct tallies conducted without watchers or bipartisan judges would be available later. On inquiring about the unavailable Nov. 8 recording the following week, the reporter was informed it was no longer in the system.
In a Jan. 12 e-mail to Marks, Norris wrote: “The hard drive on which the videos are stored is always full, therefore as the cameras are recording new videos, old video is dropped off. As of today, we can only go back to December 22, 2010 for recovering the videos.” In a letter dated Jan. 14, Norris addressed the legal requirement to preserve election recordings as follows:
“I do not have any records of correspondence, instructions or notes concerning the subject of video surveillance recordings for the purposes of election operations. At no time during the 2010 election or any past elections have I received any instructions or requests pertaining to compliance with the SOS Rule 43 on election operations security from the Saguache County Clerk and Recorder.” In the future Norris promised to perform weekly backups of the system during elections to comply with Rule 43.
Marks replied that Norris should accept her notification “as notice of my intent to file application with the district court under 24-72-204 (5) to force compliance to produce what fragments of the video recordings that may be left on the hard drive that are responsive to my CORA request.”
Marks notified Norris that the hard drive of the surveillance system must be “immediately preserved in a state that will be most likely to preserve any elements or fragments of prior video records, which may not be completely obscured by more current recordings.” She reminded him that the system was not compliant with Title 1 and Secretary of State Rules for video recordings of election operations.
The Colorado Open Records Act permits an order from the Colorado district court compelling the custodian of improperly withheld records to permit inspection.
Marks also placed Norris on notice that the video recordings could be subject to future CORA litigation. Additional damage done to whatever is left of these records, she said, is inappropriate and could be construed as further concealing records and evidence.