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I received your July 10, 2018 letter attached denying my open records requests of June
28 and June 30. Quite frankly, in having filed hundreds of open records requests in
scores of jurisdictions over the last decade in my election integrity work, I have never
received such an unprofessional and improper response as your letter. It is blatantly
false in many of the assertions and an unethical attempt to conceal public records. I urge
you to reconsider your response in light of your ethical obligations and your duties to
properly represent Hall County Board of Elections.

First, despite your assertions, I have made no statements, much less “express
representations” you claim to Ms. Wurtz or Ms. Ritchie, about any relationship between
my request for these records and the Curling v Kemp litigation pending in federal court.
I very much object to the false statements you have made in that accusation. I am asking
that you retract that false allegation.

I wrote you on July 4th that my public records requests are just that—public records
requests--and not discovery in that case. To the extent that attorneys for any of the
plaintiffs wish to eventually use related information in litigation, that is a decision they
would consider after conducting discovery. While discovery has not opened in this case,
public records access does not close for anyone, litigant or not, when litigation is
pending, as you are well aware. If a litigant plans to use public records obtained under
the open records statutes in litigation, they are to copy opposing counsel on the request,
so that they may obtain a response. As I pointed out, plaintiffs’ counsel do not have
enough information to make such a determination. In the meantime, my individual
access to public records should be in no way legally impaired. As I pointed out to Mr.
Smiley, such a public policy as you wish to unilaterally impose would have perverse and
absurd consequences. For example, under your theory, I would not have been able to
access a copy of the agenda on the table for the public at yesterday’s Election Board
meeting because it is a public record related to Georgia elections.

Although it is of no consequence to my public records request, you may be interested to

know that John Salter, counsel for Secretary Kemp, has taken the position that Hall
County election data is not related to the Curling v Kemp complaint. Your position that
because discovery has not opened in that case somehow permits Hall County to conceal
its public election records is simply flawed, and absurd on its face, and in no way borne
out by facts or law or existing public policy.

I have repeatedly asked Hall County to produce the legal authority on which you are
relying to deny these records, and you have refused to do so, instead claiming some
nonsensical position that civil litigation that is on the same topic in another county
permits withholding of public records. As you know, no such authority exists.

You have further inaccurately claimed in your letter “ Furthermore, immediately

following the primary election conducted on May 22,2018, all election records were
required to be maintained under seal and delivered to the Clerk of Superior Court
pursuant to O.C.G.A. Section 2-2-500. As such, these records are exempt from
disclosure under the Open Records Act.” Such attempts to mislead me, and more
importantly, the Hall County Election Board are unethical. As you know the text of
§2-2-500 provides for copies of certain records (not original records) to be
delivered to the court and sealed. (emphasis added)—

§ 21-2-500. Delivery of voting materials; presentation to grand jury in certain cases;

preservation and destruction; destruction of unused ballots
(a) Immediately upon completing the returns required by this article, in the case of elections other than
municipal elections, the superintendent shall deliver in sealed containers to the clerk of the superior
court or, if designated by the clerk of the superior court, to the county records manager or other office
or officer under the jurisdiction of a county governing authority which maintains or is responsible for
records, as provided in Code Section 50-18-99, the used and void ballots and the stubs of all ballots
used; one copy of the oaths of poll officers; and one copy of each numbered list of voters, tally paper,
voting machine paper proof sheet, and return sheet involved in the primary or election. In addition,
the superintendent shall deliver copies of the voting machine ballot labels, computer chips
containing ballot tabulation programs, copies of computer records of ballot design, and similar items
or an electronic record of the program by which votes are to be recorded or tabulated, which is
captured prior to the election, and which is stored on some alternative medium such as a CD-ROM or
floppy disk simultaneously with the programming of the PROM or other memory storage device.

Hall County certainly maintains the original electronic records and at least one paper copy of the
paper records I have requested. Otherwise, Hall County would be in violation of federal and
state law that requires them to maintain the original records for at least 22 months.

You are certainly aware that the only original copy of these records is not under seal and has not
been delivered to the court, which would leave the County without such a record.

Such disingenuous arguments on Hall County’s part are clearly purposely dishonest and
unacceptable. The Hall County Board of Elections has an obligation as repeatedly expressed by
Chairman Smiley yesterday to operate in a transparent and legally compliant fashion.
Fabricating claims that all the records sought are under seal at the state court is in direct conflict
with the manner in which Chairman Smiley claimed that the board would operate. I urge you to
reconsider your response.

As for you statements that my request for ballot images (cast vote records) are not available
because they are under seal and somehow not compilations that exist today is just incorrect. As
you are aware, I have received such documents from other Georgia counties. The records are
maintained in the GEMS database, which I am confident is accessible and not under seal,
although one electronic copy of it may be under seal.

I remind you of the plain language of §50-18-71(f)—

(f) As provided in this subsection, an agency's use of electronic record-keeping

systems must not erode the public's right of access to records under this article. Agencies
shall produce electronic copies of or, if the requester prefers, printouts of electronic records
or data from data base fields that the agency maintains using the computer programs that
the agency has in its possession. An agency shall not refuse to produce such electronic records, data,
or data fields on the grounds that exporting data or redaction of exempted information will require
inputting range, search, filter, report parameters, or similar commands or instructions into an agency's
computer system so long as such commands or instructions can be executed using existing computer
programs that the agency uses in the ordinary course of business to access, support, or otherwise manage
the records or data. A requester may request that electronic records, data, or data fields be produced in the
format in which such data or electronic records are kept by the agency, or in a standard export format
such as a flat file electronic American Standard Code for Information Interchange (ASCII) format, if the
agency's existing computer programs support such an export format. In such instance, the data or
electronic records shall be downloaded in such format onto suitable electronic media by the agency.

Moreover, looking at the substance of this issue, serious discrepancies from the machine
tabulation report have been identified by candidates on the May 22, 2018 ballot, and
Hall County Board of Elections is refusing to provide the public with information
concerning this very concerning discrepancy. Instead, the position of the Board is that
there were “no discrepancies” despite the clear evidence that has been shown repeatedly
in photographs of the erroneous machine tape and that at least 3 eyewitnesses reported.

During the meeting yesterday, it was shocking that the Board, having seen the
photographs of the machine tape missing candidates’ names, and losing vote count
made no attempt to ask that the original tape be brought into the meeting for
examination, but merely adopted Ms. Wurtz’s obviously inaccurate assertions that
“there were no discrepancies,” and declared it so.

Hall County poll officials signed off on the machine tape that fails to include nine races,
including federal office and loses vote count. Such discrepancies were reported to Hall
County by at least June 28, yet on July 10, the Board and Ms. Wurtz were still taking the
position that there were “no discrepancies.” Further, the “trust us, there were no
discrepancies” attitude is appalling and not in the spirit of Georgia’s election laws that
demand transparency and accountability of election officials.

I urge you to reconsider your response to my records request, and will remind you again
that the production of the records is long overdue.

Additionally, it is imperative that the records requested be preserved and not destroyed
or altered. This includes electronic records that have been requested.

I look forward to your response. Feel free to contact me for further discussion if you
think it would be helpful.

Marilyn Marks
704 552-1618