Wednesday, April 9, 2008
Advisory Opinion
The ASUC Judicial Council met at the request of Mr. Justin Azadivar and Attorney General Alex Kozak in order to consider and issue our interpretation of the Freedom of Information Right provided by the ASUC Constitution (Article XI, Section 5) with specific reference to the release of electronic files on the preliminary vote counts. In the matter at hand, the ASUC Judicial Council is asked to consider two questions posed by Mr. Azadivar:
1) Are the vote count files official ASUC documents or recorded information subject to the Freedom of Information Right?
2) If so, does withholding those files when requested until the initial tabulation constitute an "undue delay"? First, we address the question regarding the status of the records that contain the data concerning the vote count (hereafter recognized in this document as the vote count files). We recognize these files as official ASUC recorded information subject to Article XI, Section 5 of the ASUC Constitution, concerning the right to freedom of information:
All official ASUC documents, records, and other written and recorded information, with the exception of that involving personnel, litigation, or pending investment matters, shall be made accessible to the public upon request. The ASUC must furnish copies of requested information to interested students without undue delay, and may not charge above cost for doing so. We see the vote count files as official ASUC recorded information falling under the jurisdiction of the Freedom of Information Right. The data does not involve personnel, litigation, or pending investment matters and therefore does not fall under the exceptions provided for by the Freedom of Information Right. It is an ASUC record or document recorded by a computer and the Elections Council (EC) has control and authority over the elections pursuant to Article VII Section 1.A of the ASUC Constitution. We define "official" as being authorized or released authoritatively. The Elections Council, which is vested with the authority to record and compile these votes by Article VII.1.A of the Constitution, possesses the authority to make these documents official ASUC recorded information. These files become official when the complete vote record is generated after the polls close on Thursday at 11:59 PM (the last day of voting). The files do not exist before the polls close and are not put on a disc until after.
Having established that the vote count files are an official ASUC document subject to the Freedom of Information Right, we turn to the interpretation of the "undue delay" clause. We determined that a due delay may come from legal guidelines in addition to the practical restrictions referenced by Mr. Azadivar. Where the Constitution is silent or open for interpretation, legal guidelines may be set forth in subordinate documents providing for further regulations, as is the case for the By-Laws and the Judicial Rules and Procedures. With regards to the ASUC Elections, Article VII, Section 1.A. of the Constitution implicitly allows the Election By-Laws jurisdiction when not in conflict with the Constitution. Therefore, we believe that legal guidelines set forth in By-Laws and other ASUC documents can provide for a "due delay" under the Freedom of Information Right.
Attorney General Kozak brought up the issue of whether the good faith deadline represents a due delay. We have determined that the good faith deadline is only intended to restrict what cases the Judicial Council can accept and to dictate the Council's actions (Constitution Article IV Section 3), not to restrict the actions of others. Any other application could be outside our jurisdiction.
The Judicial Council feels that the By-Laws provide a legal basis for withholding these documents until after preliminary tabulation, representing a "due delay." Title IV Section 15.1.4 states that "After the preliminary tabulation, the results of the elections shall be released by the Elections Council Chair and the Attorney General of the ASUC as soon as possible." The ASUC Judicial Council interprets "the results of the elections" as incorporating the vote count files, as these files have been determined to be official and contains the complete voting record which will be used in preliminary tabulation to create the preliminary election results. The information contained in these files is thus part of the "results of the election" which under Title IV Section 15.1.4 of the By-Laws shall be released after the preliminary tabulation.
As we have established that the By-Laws may provide for a "due delay" through Title IV Section 15.1.4, as described above, we have decided that the withholding of these vote count files until after preliminary tabulation is a "due delay" admissible under the Freedom of Information Right.
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