Critical Infrastructure and Frustration of a Government Function

Word Salad Told by the Office of Elections in Their Latest Records Refusal Response

On January 6, 2017, the Obama administration designated our elections as Critical Infrastructure; which is defined as, “Systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.” (Source:§1016(e) of the USA Patriot Act of 2001 (42 U.S.C. §5195c(e)))

When I first started requesting public records from the OE I received this “critical infrastructure” excuse denial countless times. Sometimes they would change it up with the excuse that the release of the record would result in “frustration of a government function”.

I even sent a records request to the Office of Elections requesting the list of records that they designated as critical infrastructure, which, ironically, was denied.

They’ve managed to tie both excuses together in the latest denial, this one in a reply to Ralph Cushnie, Kaua’i’s Election Integrity warrior, who requested ballot security chain of custody documentation.

I’ve not seen such a circumambulatory word salad mash up of this scale in my 150-plus records request history with the OE and the county clerks.

Here are the highlights from an OE email sent to Ralph on January 11, 2024.

OE: (Paraphrasing)- We cannot give legal advice.

“Also,…we would note that similar to how we do not disclose "[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function" under HRS § 92F-13(3), we would not discuss such matters.

Specifically, elections in general and ballots in particular are considered critical infrastructure, which by their nature must be confidential in order for the government to avoid the frustration of a legitimate government function.  This critical infrastructure includes the voting system that generate copies of the ballots in the form of ballot images, which your email asks questions about.  Additionally, it includes matters related to the accountability and security of the ballots.”

(Brace yourself-it gets worse)

“With that in mind, in order to safeguard critical infrastructure, the State’s practice is to not disclose IT security methodology, activities, data, including equipment and software employed, along with matters concerning the accountability and security of ballots, because doing so could, among other things, advertise possible vulnerabilities or create the possibility of altering election results. Additionally, the State is obligated to take appropriate steps to safeguard proprietary and confidential materials designated by a vendor.” (emphasis my own).

So…they refuse to give chain of custody documentation with the excuse that doing so could open them up to “altering election results”.

They refuse to give ballot images, citing “critical infrastructure”, even though several other states have readily made ballot images, as well as other election records, such as batch summary reports, public.

Where in the definition of critical infrastructure can you interpret that releasing ballot images to the public would lead to a “debilitating impact on security, national economic security, national public health or safety, or any combination of those matters”?

Are these ballot images radioactive?

The email continues, and the OE claims that they have adequately described ballot security procedures by explaining that as the “county clerks secure the ballots at their offices and subsequently transfer custody to the state counting center. Consistent with this, the Counting Center Manual reflects that custody of the ballots is obtained from the county clerks (i.e. “Ballots are transferred to the counting centers in the presence of Official Observers, who serve as the “eyes and ears” of the public”).”

Hawaii ranks 51/51 on the Heritage Foundation Election Integrity scorecard.

I would rank the Office of Elections #1 in the nation for creative interpretation of critical infrastructure, feeling frustrated by legitimate government functions, and gaslighting the concerned citizens of Hawai’i, who only want security, accuracy, and transparency of our elections.