Public Records Act.
The Public Records Act (PRA) requires all state and local governmental entities to make all public records available to the public, unless a specific exemption applies or disclosure is prohibited. Public records are records prepared or retained by a governmental entity that relate to the conduct of government or the performance of governmental or proprietary functions. The PRA must be liberally construed; any exemptions to the disclosure requirement must be interpreted narrowly. Exemptions are permissive, meaning that an agency, although not required to disclose, has the discretion to provide an exempt record. With exceptions, the exemptions under the PRA are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from specific requested records.
There are a number of statutory exemptions for records or information contained in records, including those that involve security information. These exemptions include records or information related to preventing or responding to terrorist attacks, vulnerability assessments and emergency response plans for correctional facilities, and safe school plans. Additionally, information related to public and private infrastructure of computer and telecommunications networks, which include security passwords, access codes, security risk assessments, security test results to the extent that they identify specific system vulnerabilities, and other information the release of which may increase risk to the confidentiality, integrity, or availability of security, information technology infrastructure, are exempt from disclosure.
Continuity of Operations Plans — Elections.
The Washington Military Department, through the Adjutant General, must maintain a copy of the continuity of operations plan for election operations for each county that has a plan available as part of its emergency management duties. Continuity of operations plans are developed to assist with continuing essential functions and services in response to emergencies and disasters. Local, state, and federal entities, including the Department of Homeland Security, coordinate to address election infrastructure concerns including the security of voting systems, voter registration databases, and polling places.
The Secretary of State (Secretary) tests all voting systems or components of voting systems that are submitted for review. A report of the Secretary's examination is then sent to each county auditor. Voting systems and components of a voting system are subject to passing an acceptance test and a vulnerability test. Three days before each state primary or general election, the Secretary provides for the conduct of programming tests for each vote tallying system. Prior to certification of the election, the county auditor conducts an audit of duplicated ballots and an audit using at least one of the four specified audit methods. The Secretary must issue an annual report regarding instances of security breaches of election systems or election data, and may only distribute the report and related information to certain individuals. A security breach is defined in the elections code as a breach where the election system or associated data has been penetrated, accessed, or manipulated by an unauthorized person.
Two new election security exemptions to the Public Records Act's disclosure requirements are created. First, the following records are exempt in their entirety:
Second, portions of records containing information about the following are exempt if the disclosure may increase risk to the integrity of election operations or infrastructure:
These election exemptions do not include information or records pertaining to security breaches, except as exempt under statutory provisions concerning election security breach identification and reporting.
These exemptions will apply to any public records request made prior to the effective date for which disclosure has not yet occurred.
The substitute bill:
(In support) This bill closes finite loopholes in election security public disclosure that could put Washington elections at risk. Election officials voluntarily work with the Department of Homeland Security and the State Auditor's Office to perform physical and cyber security assessments. Federal protocol clearly outlines that these reports are not disclosable, but state law is vague. Election security and contingency plans should not be provided to people who want to harm Washington's elections. House Bill 1068 takes a significant step towards protecting Washington's election infrastructure and security plans at both the state and local levels. Creating these disclosure exemptions will improve confidence that emergency plans will be effective during emergencies and provides clarity surrounding which reports are exempt in their entirety. House Bill 1068 does not affect the disclosure of a breach or response to a breach by an auditor or the Secretary of State; the public will still know if there was an attack on Washington's elections and how the government responded.