The Diebold open records request is denied in part

Here is the e-mail I recieved today regarding my OR request for the Diebold certification paperwork, especially the physical configuration audit (PCA).

Mr. Washburn:

I apologize for not being able to respond to your inquiries about the status of your open records request. Faith has gathered the information in items 1, 2, 3 and 5.

With respect to item 4, Diebold has informed us that they take the position that the entire ITA report is exempt from your request. We are working on a response to them that states that we do not accept this position and that we will expect them to defend this position if litigation ensues. We hope to get them to provide a redacted copy of the report.

We do not have a copy of item 6, since it was submitted to the ITA and not submitted to us.

We have not developed a test plan that addresses your concerns in issue 7.

As you know we have several staff vacancies and several administrative obligations that have delayed our response. I will provide you with more information on Friday after I am out of a series of hearings.

Here was my response:

Dear Mr. Kennedy:

I appreciate the constraints of time for this week as I will be in Portland, OR this weekend with several hundred other election-integrity advocates. There is much to do to in order to complete the paper I am presenting to the conference, complete 40 hours of programming work for a client by Thursday, harry vendors peddling un-certifiable equipment, and still keep a wife happy at home. Busy though is better than bored.

As to the OR request:

The conditional phrase you are looking for is WHEN litigation ensues, not if.

Item 4 is required by ElBd7.01(1)e. My understanding from Faith is that you have the ITA report, buy cannot release it because of the Diebold claim of exemption under 19.36(5) [trade secrets]. Is this a fair assessment of the status of item 4?

As to item 6, without the PCA no one (not the SEB staff, not the county clerks not the municipal clerks, not the poll worker, not the poll observers) will know if the system delivered is the system paid for. Diebold has a documented and (losing) litigation record on this exact practice of bait and switch. Am I to understand the PCA (Physical Configuration Audit) is NOT part of either of the 2 the ITA reports? How can either ITA report state this system is qualified under these standards when there is no description of what exactly THIS is? This would be similar to you purchasing a car and the dealer not giving you any description of the engine type, coolant requirements, wheel requirements or number of seats. I doubt you would buy a car under those conditions. You have to understand software testing and software certification is what I do for 8 hours a day. Any testing or certification done without a description of the system under test is worse than pointless because you may think you are doing useful work. Is this a fair assessment of item 6: Neither the ITA report from the hardware ITA, Wyle, or the ITA report from the Software ITA (Ciber or SysTest) contains a PCA by which you could confirm or deny the system delivered is the system submitted for qualification?

As to Item 7, I guess if you trust Liebold, and don’t have a description of what is a certified system, any plan to verify the system delivered is covered by the certification number, FEC- N-1-06-22-22-001 (2002) is indeed moot. No description and no suspicion do obviate any need for verification.

As the original request was by e-mail, I will consider this the response to my original request as defined in WI statutes 19.37. I will begin the mandamus court proceedings tomorrow or Thursday.

Can I pick up Items 1,2, 3, and 5 tomorrow at the SEB meeting in Madison? It looks as if it will be another Scott Walker media day in the morning.

Thank you for your time on this matter.

The push to certify something is on

The push to certify something, anything is on.

Thanks to Steveegg for the link to the story about the failure of the Statewide Voter Registration System (SVRS) by Accenture and the push to certify some sort of voting machinery.

Unfortunately, the Accenture thing was predicted back in May, 2005.

The pressure by the clerks of the most populous counties and municipalities to have the State Election Board certify something, anything was predicted back on August 3, 2005. This pressure will only grow as the January 1, 2006 deadline looms. At this time I do not think ANY system is HAVA-Compliant and meets the minimum statutory requirements of 5.91 and 5.64. Populex is the least flawed of all the flawed software and systems on the market. But even Populex does not create a ballot conforming to the legal requirements of 5.64.

This means hand counting paper ballots; even in the cities of Milwaukee, Racine, Kenosha, Appleton and Waukesha.

Wisconsin will still get the HAVA money though. Paper ballot are a HAVA compliant method if you use the Rhode Island Tactile Ballot for the blind and AutoMark (no Unity though) for the spastic and those with palsy.

The next 3 months, October, 2005 through December 2005, will be a watershed time for Wisconsin on the issue of voting machinery. We can ceritfy anything as California did 2 years ago and face the same election irregularities, litigation losses and lost voter confidence as California has. Or, Wisconsin can recognize she has high standards which none of the abysmal programmers of voting machine currently meet.

I opt for the high standard and the possibility of a straight election in Milwaukee sometime in my lifetime. There are worse things than hand counting paper ballots and getting correct, trusted results in 4 hours. One that comes to mind is corrupted and perhaps fraudulent results within 1 hour.

Update on Diebold OR Request

I spoke with Faith at the WI State Election Board (SEB) this morning regarding the status on my OR request on materials submitted by Diebold as part of its application for certification to sell voting machinery in Wisconsin.

The SEB staff has assembled the documents for item 1-5 and item 7. The staff has gotten a verbal statement from Ian Piper of Diebold Election Systems, Inc (DESI or Diebold). Mr. Piper asserts all of item 6, the Physical Configuration Audit, is proprietary and trade secret information. The SEB staff has given DESI until end of day Friday to make this claim of proprietary-ness in writing.

Thus, the soonest I will recieve an estimate of the cost of the requested materials is Monday, September 26, 2005.

Two things about the conversation which boggle my mind are:

1) A description of what is the EAC/NASED 2002 certified system is proprietary. Without the description, how do you know if the system delivered is a certified system or not?

2) I had to correct Faith on what the Independant Test Authority (ITA) could be. She stated all the SEB staff has is a report from Wyle Labs. The thing is Wyle Labs is NOT an one of the 2 ITA which can recommend the issuance of an FEC/EAC/NASED certification number. Only Ciber, Inc and SysTest Labs, LLC. can certify voting machinery software. See the FEC/EAC/NASED certification proceedures for yourself. How is it a private (albeit somewhat obsessive on this topic) citzen knows more of the FEC/EAC/NASED certification process than the staff of the WI SEB?

No response on open request for Diebold

On the Diebold in Wisconsin front.

D. Richard Rasmussen is no longer with the WI SEB staff.  This is a great loss.  My dealing with him were limited but he was exceptionally competent and diligent is his work. Not many people take software testing as seriously and methodically as he did.

I spoke with the legal counsel, George Dunst today.  He thought I had  received a response to my request.  I had not.  When he check for me, I was informed the woman to whom the request had been forwarded was awaiting a response for Diebold.  She was having Diebold vett my request to determine if the OR request was for any proprietary or trade secret information.  I specificially only asked for information Diebold is required to give the SEB staff as part of the application process.  SEE: section 7.01(1)(e) of ElBd7. 

These are the regulations promulgated by the WI State Election Board itself. My teeth grind at this. And to think I said nice things about Kevin Kennedy going to a (Diebold/ES&S/Sequoia)-Funded National Conference at the Election Center.

Payment for the Texas Front

I spoke with Gwinda Jones from Erath County, yesterday. Here is my reposnse letter to her.

[Redacted]
Germantown, WI 53022
September 2, 2005

Gwinda Jones, Erath County Clerk
100 W Washington
Stephenville, TX 76401

Dear Ms. Jones

As per our conversation please find enclosed check in the amount of $37.53. This check is to cover the cost at $1.00 per page of Item 1 of my PIA request dated September 2, 2005. I have enclosed a copy of the original PIA for reference.

In our phone conversation you mentioned requests 2 through 5 are empty because there are no contracts between Erath County and any of the AccuPoll partners mentioned: AmCad, Scott-Merriman , Source Technologies or Unisys. I would like this statement in writing, please.

In our phone conversation you mentioned requests 6 and 7 are empty because you have received no documents from either independent testing authority (ITA) used to support the AccuPoll certification number, FEC N-2-13-22-22-001 (2002). I would like this statement in writing, please.

As an aside, I find this absence of ITA documentation particularly odd. As county clerk you will need at least the Physical Configuration Audit (PCA) submitted by AccuPoll to the ITA under section 8.7.1 of the EAC 2002 certification standards. The PCA insures the system delivered to Erath County is the system covered by the certification number,FEC N-2-13-22-22-001 (2002). For this very reason, Wisconsin statute requires ITA reports and documents be produced. Texas law may be different. But, even without the requirement of Texas statute, I would think you, in your office as county clerk, would need the ITA documents. The use of non-certified equipment could open Erath County up to legal liability under HAVA should a citizen of Erath county discover the election machinery delivered was not the election machinery covered by the certification number.

In our phone conversation you mentioned requests 8 and 9 are premature since no machinery or software has yet been delivered. Thus, there are no software licenses or re-distributable code available. I would like this statement in writing, please.

Thank you for your time in this matter.

In Liberty

John Washburn

Opening a Texas Front

Since AccuPoll wants to sell stuff in Wisconsin, I thought it prudent to ask a current customer of AccuPoll exactly what is it you get with this integrated DRE. Here is my open records request (PIA request in Texas lingo) to the county clerk of Erath county, Texas.

[Redacted]
Germantown, WI 53022
September 2, 2005

Gwinda Jones, Erath County Clerk
100 W Washington
Stephenville, TX 76401

Dear Ms. Jones

This is a Public Information Access request pursuant to Texas Statute 552.

Background:
On June 21, 2005, in the magazine, Government Technology, there appeared and article entitled, "Erath County, Texas, to Employ New Voting System". A copy of the article is enclosed with this request. The article announces the execution of a purchase contract between Erath County, Texas and the company AccuPoll for voting equipment for the County. The article makes clear the current contract is subject to pending certification by the State of Texas.

There are two independent testing authorities (ITA) used for certification in the 2002 EAC/FEC/NASED standards for electronic voting equipment. As seen in the enclosed copy of the NASED (now EAC) procedures, theITA's are Ciber Inc. and SysTest Labs, LLC. The electronic version of the NASED/EAC procedures can be found at http://www.nased.org/ITA%20Information/NASEDITAProcess.pdf. The electronic version of the 2002 EAC/FEC/NASED standards to which the AccuPoll system is certified can be found at: http://www.eac.gov/election_resources/vss.html.

Requests:
Each of the following requests are severable and in no way to be considered intertwined. If the production of one request is delayed, itis not interpreted by me to have an impact on the production of the documents for the other requests.

Request 1)  I would like copies of each contract signed where at least one party is Erath County and another party is AccuPoll. This request is limited to 1 year prior the purchase of AccuPoll equipment. I am not interested in any contract signed prior to Midnight of June 21, 2004.

Request 2)  I would like copies of each contract signed where at least one party is Erath County and another party is AmCad, an AccuPoll Partner. This request is limited to 1 year prior the purchase of AccuPoll equipment. I am not interested in any contract signed prior to Midnight of June 21, 2004.

Request 3)  I would like copies of each contract signed where at least one party is Erath County and another party is Scott-Merriman, an AccuPoll Partner. This request is limited to 1 year prior the purchase of AccuPoll equipment. I am not interested in any contract signed prior to Midnight of June 21, 2004.

Request 4)  I would like copies of each contract signed where at least one party is Erath County and another party is Source Technologies, an AccuPoll Partner. This request is limited to 1 year prior the purchase of AccuPoll equipment. I am not interested in any contract signed prior to Midnight of June 21, 2004.

Request 5)  I would like copies of each contract signed where at least one party is Erath County and another party is Unisys, an AccuPoll Partner. This request is limited to 1 year prior the purchase of AccuPoll equipment. I am not interested in any contract signed prior to Midnight of June 21, 2004.

Request 6)  I would like a copy of any document received by Erath County where the author of the document was Ciber, Inc, an employee of Ciber, Inc. or an agent of Ciber, Inc. I am not interested in any documents so authored which were received by the County prior to Midnight of January 1, 2003.

Request 7)  I would like a copy of any document received by Erath County where the author of the document was SysTest Labs, LLC, an employee of SysTest Labs, LLC, or an agent of SysTest Labs, LLC. I am not interested in any documents so authored which were received by the County prior to Midnight of January 1, 2003.

Request 8)  I would like a copy all software license agreement(s) from the vendor, AccuPoll. This request may or may not be covered by request number 1. Even if covered by request 1 this request is to be considered severable from other requests because this request has no time limitation. I am interested in all software license agreement(s)provided by AccuPoll regardless of when such agreement came into the possession of the County.

Request 9)  Since the software from AccuPoll open source software, I would like a copy of the source code. Fulfillment of this request may be done by re-distributed to me of the source code delivered to Erath County. Fulfillment of this request may also be done by distribution of the source code to me directly from AccuPoll. The preferred physical medium of (re)distribution is CD-ROM or DVD-ROM. A URL to an FTP site accessible to me is also an acceptable medium of (re)distribution to fulfill this request. Enclosed is a copy of the legal definition of the term open source regarding the copy of the source code you received from AccuPoll.

You may contact me at the address above for the delivery of the produced documents or the written response regarding such production. You may contact me by telephone regarding the costs of reproduction and shipping the produced documents to me and the details on making payment to the county regarding such. My telephone numbers are: [redacted] or[redacted]

Thank you for your time in this matter.

John Washburn