Denial

of Public Records Requests (6 days after Andersons protest is filed and less than 48 hours before his
scheduled hearing)
On Tue, Nov 29, 2016 at 7:06 PM, Bowens, Derek
<dbowens@nhcgov.com> wrote:
Good Evening, Mr. Anderson:
This email is in response to the public records request you filed with this office on November 17, 2016. You
requested access to several items, each of which I have listed below. Included in the detail below is a decision,
in compliance with applicable statutes, as to whether you are permitted to review the items requested.
Request # 1: Access and Inspect Absentee Ballots Cast
Response: In accordance with N.C. Gen. Stat. 163-165.1(e), the request is denied.

(e) Voted ballots and paper and electronic records of individual voted ballots shall be
treated as confidential, and no person other than elections officials performing their
duties may have access to voted ballots or paper or electronic records of individual
voted ballots except by court order or order of the appropriate board of elections as
part of the resolution of an election protest or investigation of an alleged election
irregularity or violation. Voted ballots and paper and electronic records of individual
voted ballots shall not be disclosed to members of the public in such a way as to
disclose how a particular voter voted, unless a court orders otherwise. Any person who
has access to an official voted ballot or record and knowingly discloses in violation of
this section how an individual has voted that ballot is guilty of a Class 1 misdemeanor.
(2001-460, s. 3; 2002-159, s. 55(o); 2005-323, s. 1(f); 2007-391, s. 9(a).)
Request # 2: Inspection of Absentee Container Envelopes
Response: In accordance with N.C. Gen. Stat. 163-82.10(a), 163-230.2(a1), and 132-1.2(4),
this request is approved. Inspection must occur in the presence of a designated Board of Elections employee.
During your inspection, you may not:

1.
Make photographic images or recordings of voter signatures (Prohibited by N.C.
Gen. Stat. 163-82.10(a) and SBE Memorandum)
2.

Remove labels used to redact ballot numbers associated with each absentee voters return envelope.
This information is not a public record in accordance with the aforementioned statutes and memoranda.
3.
Remove envelopes from the custody of the Board of Elections

Photocopies that are properly redacted for ballot numbers and voter signatures may be provided
at a cost per the Board of Elections fee schedule. Depending on the volume of the productions, additional
costs may be assessed in accordance with N.C. Gen. Stat. 132-6.2(b)
These records will be made available to you beginning on November 30, 2016 at 9:00 am.
Request # 3: Inspect and access memory cards from Direct Record Electronic Voting Machines

Response: In accordance with N.C. Gen. Stat. 163-165.1(e), this request is denied.
Media cards retrieved from the iVotronic contain voter-specific data and ballot identifiers.
Request # 4: Access to tapes which recorded votes cast
Response: Request requires further clarification. If you are seeking the final printed results tape from all early
voting sites, this would be permissible since voter-specific selections are not included. If you are seeking
access to real-time audit logs, which include voter-specific selections, this will not be permitted. If desired, the
aforementioned final results tapes will be provided during inspection.
Again, all records in which access is permitted will be provided for your inspection beginning on November 30,
2016 at 9:00 am, under BOE supervision.
If you have any questions, please let me know.
Thanks,
DLB

Derek Bowens | Elections Director

Elections

New Hanover County

230 Government Center Drive, Suite 38
Wilmington, NC 28403
(910) 798-7287 p | (910) 798-7295 f

www.nhcgov.com

Bowens reschedules protest hearing after Anderson reminds him of the 48-hour public meeting notice
requirement

On Tue, Nov 29, 2016 at 1:14 PM, Bowens, Derek
<dbowens@nhcgov.com> wrote:

Good Afternoon, Mr. Anderson:

Please see the press release below on the meeting to be held by the New Hanover County Board of
Elections on 12/1/2016 at 9:00 AM to conduct a preliminary consideration of filed protests in
accordance with N.C. Gen. Stat. 163-182.10(a).
Public Notice
Additionally, I will be sending you an email later today regarding your initial public records request. If
you have any questions in the meantime, please let me know.
Regards,
DLB
From: Bowens, Derek S
ent: Monday, November 28, 2016 9:45 PMTo: 'rloveanderson@yahoo.com'
<rloveanderson@yahoo.com>Cc: 'Jamie Getty' <jgetty@bcklawfirm.com>;
'elections.sboe@ncsbe.gov' <elections.sboe@ncsbe.gov>; Washburn, Jonathan
<jwashburn@nhcgov.com>; Getty, Jamie <jgetty@nhcgov.com>; Pollard, Thomas
<tpollard@nhcgov.com>; 'Kim Strach' <kim.strach@ncsbe.gov>Subject: RE: Preliminary Hearing
Meeting
Please note the typo below. The Board of Elections will be meeting on December 1, 2016. The time
of the meeting is forthcoming.

Bowens responds to lack of statutorily required meeting notification on county website.

(The bulletin board Bowen is referring to is not easily accessible to the general public.)

From: Bowens, Derek S

ent: Monday, November 28, 2016 9:24 PMTo: 'rloveanderson@yahoo.com'
<rloveanderson@yahoo.com>Cc: Jamie Getty <jgetty@bcklawfirm.com>;
elections.sboe@ncsbe.gov; Washburn, Jonathan <jwashburn@nhcgov.com>; Getty, Jamie
<jgetty@nhcgov.com>; Pollard, Thomas <tpollard@nhcgov.com>; Kim Strach
<kim.strach@ncsbe.gov>Subject: RE: Preliminary Hearing Meeting
Mr. Anderson,
All of our notices can be found on the countys website. The press releases can be found here. Our
site is a page on the countys full website. Please keep this link for your records.
http://news.nhcgov.com/news-releases/
We also post a copy on the principal bulletin board and on the entrance door to the Board of Elections
meeting room per N.C. Gen. Stat. 143-318.12(b)(2). Recessed meetings do not have to be renoticed upon resumption if the time and place of continuance is announced in open session (N.C.
Gen. Stat. 143-318(b)(1)).
Due to recent guidance received by the State Board of Elections regarding the inability to conjoin our
local recount with a potential statewide recount under N.C. Gen. Stat. 163-182.7(a) and 163182.7(b), the Board of Elections has decided to postpone the recount scheduled for tomorrow. We
will also reschedule the preliminary consideration on the protests you filed for Thursday, November
1, 2016, at a time to be determined shortly. As per usual, proper notice will be provided in compliance
with statutory procedure. The statute does not require (N.C. Gen. Stat 163-182.10(a)) notice for a
preliminary consideration hearing, although we provide it as a best practice. If the protest were to go
to a full hearing, then you and interested parties would receive proper notification per N.C. Gen. Stat.
163-182.11.
Regarding your concern on vote counting, the Board of Elections is required to count all ballots prior
to the canvassing of the election. We had several members of the public present for the count at
various times throughout the day. According to my recollection, you came to the Board of Elections
office after 10:00 pm on the 17th at which point I greeted you and provided you with a tour of the
facility. I even offered you the opportunity to come back to the Board room and observe the count to
which you declined. We certainly extend the right for all members of the public to observe the count
as that is a requirement in accordance with N.C. Gen. Stat. 163-182.2(a)(3).
If you have further questions, please let me know.
Regards,
DLB
From: Robin Love Anderson [mailto:rloveanderson@yahoo.com] Sent: Monday, November 28, 2016
6:40 PMTo: Bowens, Derek <dbowens@nhcgov.com>Cc: Jamie Getty <jgetty@bcklawfirm.com>;
elections.sboe@ncsbe.gov; Washburn, Jonathan <jwashburn@nhcgov.com>; Getty, Jamie
<jgetty@nhcgov.com>; Pollard, Thomas <tpollard@nhcgov.com>; Kim Strach
<kim.strach@ncsbe.gov>Subject: Preliminary Hearing Meeting

Dear Mr. Bowens,

Thank you for your email. With regard to the meeting that the Board of Elections has scheduled for tomorrow,
11/29/2016 at 9:00 am, I am requesting that this meeting be rescheduled to comply with mandatory public
notice of official meetings law. As you are aware, N.C. Gen. Stat. 143-318.12, Public notice of official
meetings identifies how information regarding meeting and special meetings are conveyed to the public. This
notice requires at least 48 hours before the time of the meeting, and includes preliminary hearings for election
protests. Your initial contact to me, below, sent at 4:13 pm today does not constitute the required 48 hours
notice to allow the interested members of the public, including myself, to attend this preliminary protest
hearing. I am also concerned that the Board of Elections would rush a preliminary hearing without first fulfilling
the public records request that I submitted on 11/17/2016 which is clearly integral to the protest.
Also of concern to me is the general way in which the Board of Elections is providing notice of meetings to the
public. N.C. Gen. Stat. 143-318.12 (d)-(f) also identifies that if a public body has a website, that it shall post
notice of any meeting held under subdivisions (b)(1) and (b)(2) of this section prior to the scheduled time of
that meeting. To date, neither the rescheduled canvass, the scheduled recount, nor the preliminary hearing of
the election protest filed are on the NHC BOE website notice of meetings. Likewise, this information was not
posted anywhere in or around the Board of Elections or New Hanover County websites.
I am similarly concerned with the counting of ballots that was being performed at the BOE office into the late
hours of the night that I witnessed on 11/17/2016, far outside the normal hours of operation of Boards of
Election around the state and, again, without notice to the public.
The spirit and intent of these laws is to ensure that the public is aware of these public meetings and events in
order that they can attend and, if possible, participate. In the case of counting ballots, the public being aware
and allowed to observe is necessary to ensure the integrity of the vote. I have deep concerns in particular that
the vote counting was going on behind locked doors and out of the view of the public.
If you would, please respond to this email to let me know what action you are taking with regard to the
preliminary hearing. If you contend that the notice of rhis meetjng is proper, please identify the specific
exemption you feel justifies the scheduling of this hearing and notify me of the appeals procedures available to
me under the law.
Thank you.
Sincerely yours,
John Christian Anderson

Board Member Jamie Getty Responding for Derek Bowens to Andersons follow-up inquiry on the status of
his public records request
On Sat, Nov 26, 2016 at 3:13 PM, Jamie Getty
<jgetty@bcklawfirm.com> wrote:
Dear Mr. Anderson,
The New Hanover County Board of Elections received your request to review absentee ballots from the
election. Derek Bowens is out of town for the holiday this weekend and asked me to respond.
As you probably know, Ms. Boseman and Dr. Hickey both requested a recount, which will be held on Tuesday
November 29, 2016 at 9 am at the Board of Elections office. Before the Thanksgiving holiday, Mr. Bowens was
busy arranging for the recount so that it could be done as soon as possible for those candidates.
The information you requested is quite voluminous, and will take some time for the staff to compile for you. Is it
possible to respond to your request at the end of next week? It will be much appreciated, as it will allow the
staff to focus their attention on completing the recount for Dr. Hickey and Ms. Boseman. Please let me know if
that timeframe is acceptable to you given the circumstances.
Thank you,
Jamie Getty