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IN THE CIRCUIT COURT
JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR PALM BEACH COUNTY, FLORIDA
BLACK BOX VOTING, INC
Theresa LePore, in her official
capacity as Elections Supervisor
of Palm Beach County, Florida
Case no. 50 2004 CA 011167 XXXX MB Filed Nov. 30 2004 ____________________________________
COMPLAINT FOR PUBLIC RECORDS
Plaintiff, BLACK BOX VOTING, INC, sues DEFENDANT, Theresa LePore, in her official capacity as Elections Supervisor of Palm Beach County, FL, and alleges::
1. This is a complaint for temporary and permanent relief demanding access to public records as defined in Fla. Stat. 119.011(1) and access to the building and files where the public records are made and/or located and kept pursuant to Fla. Stat. 119.08(2) and within the jurisdiction of this court.
2. Plaintiff BLACK BOX VOTING, INC (hereinafter "BLACK BOX VOTING") is a Washington nonprofit corporation.
3. Defendant Theresa LePore is the Elections Supervisor of Palm Beach County, Florida, and the custodian of all material related to the conducting of elections for all local, statewide and federal elections held in Palm Beach County, Florida.
4. Defendant Theresa LePore, in her official capacity is acting on behalf of the elections office of Palm Beach County, Florida, and is subject to the public records law, section 119.011(1)(2), Fla. Stat. As such, defendant Theresa LePore has completely assumed the governmental obligations to conduct elections, to compile results from all elections conducted and to report results of all elections conducted as prescribed by law and to retain all results, including compilations thereof as required by both state and federal law.
5. The Plaintiff, BLACK BOx voting, by specifid written and oral requests, have requested certain public records as defined in 119.011(1) from defendant Theresa LePore, in her official capacity as specifically transmitted to her and as specifically quoted and set forth below:
Item 1. All notes, emails, memos, and other communications pertaining to any and all problems experienced with the voting system, ballots, voter registration, or any component of your elections process, beginning October 12, through November 3, 2004.
Item 2. Copies of the results slips from all polling places for the Nov. 2, 2004 election. If you have more than one copy, we would like the copy that is signed by your poll workers and/or election judges.
Item 3: The internal audit log for each of your Unity, GEMS, WinEds, Hart Intercivic or other central tabulating machine. Because different manufacturers call this program by different names, for purposes of clarification we mean the programs that tally the composite of votes from all locations.
Item 4: If you are in the special category of having Diebold equipment, or the VTS or GEMS tabulator, we request the following additional audit logs:
a. The transmission logs for all votes, whether sent by modem or uploaded directly. You will find these logs in the GEMS menu under “Accuvote OS Server” and/or “Accuvote TS Server”
b. The “audit log” referred to in Item 3 for Diebold is found in the GEMS menu and is called “Audit Log”
c. All “Poster logs”. These can be found in the GEMS menu under “poster” and also in the GEMS directory under Program Files, GEMS, Data, as a text file. Simply print this out and provide it.
d. Also in the Data file directory under Program Files, GEMS, Data, please provide any and all logs titled “CCLog,” “PosterLog”, and Pserver Log, and any logs found within the “Download,” “Log,” “Poster” or “Results” directories.
e. We are also requesting the Election Night Statement of Votes Cast, as of the time you stopped uploading polling place memory cards for Nov. 2, 2004 election.
Item 5: We are requesting every iteration of every interim results report, from the time the polls close until 5 p.m. November 3.
Item 6: If you are in the special category of counties who have modems attached, whether or not they were used and whether or not they were turned on, we are requesting the following:
a. internal logs showing transmission times from each voting machine used in a polling place
b. The Windows Event Viewer log. You will find this in administrative tools, Event Viewer, and within that, print a copy of each log beginning October 12, 2004 through Nov. 3, 2004.
Item 7: All e-mails, letters, notes, and other correspondence between any employee of your elections division and any other person, pertaining to your voting system, any anomalies or problems with any component of the voting system, any written communications with vendors for any component of your voting system, and any records pertaining to upgrades, improvements, performance enhancement or any other changes to your voting system, between Oct. 12, 2004 and Nov. 3, 2004.
Item 8: So that we may efficiently clarify any questions pertaining to your specific county, please provide letterhead for the most recent non-confidential correspondence between your office and your county counsel, or, in lieu of this, just e-mail us the contact information for your county counsel.
Because time is of the essence, if you cannot provide all items, please provide them in increments as soon as you have them, and please notify us by telephone (206-335-7747) or email (Bevharrismail@aol.com) as soon as you have any portion of the above public records request available for review.
Thank you very much, and here’s hoping for a smooth and simple canvass which works out perfectly for you. We very, very much appreciate your help with this, and we do realize how stressful this election has been.
If you need a local address, please let me know, and we will provide a local member for this public records request. In the interest of keeping your life simple, we thought it best to coordinate all records through one entity so that you don’t get multiple local requests.
6. All of the request made, as stated above in paragraph 5, was transmitted by e-mail and facsimile on Nov. 2, 2004 at approximately 11:30 p.m.
7. Upon information and belief, defendant Theresa LePore received these requests on Nov. 2, 2004, at approximately 11:30 p.m.
8. Thereafter, oral requests were made to defendant Theresa LePore by Beverly J. Harris, Executive Director of plaintiff BLACK BOX VOTING, on or about Monday November 22, 2004, and again on Tuesday Nov. 23, 2004 with no results.
9. An oral request was again made to the county attorney's office on or about Monday November 29, 2004, with no results.
10. Without the requested records, Plaintiff, which is incorporated for the public purposes of consumer protection for elections and auditing / verifying correctness of elections, will be unable to conduct its business in the needed and expeditious manner as related to the 2004 general election.
11. The Plaintiff, BLACK BOX VOTING, has retained the undersigned attorneys and has agreed to pay them a reasonable fee and cost.
12. Time is of the essence for these records.
13. The plaintiff is entitled to accelerated hearings and/or a trial on all counts pursuant to Fla. Stat. 119.11.
The Plaintiff in this action is entitled to the following relief:
A. An Order advancing this case on the docket and / or the issuance of a rule to show cause to require the defendant to produce the records.
B. Temporary and permanent relief as deemed appropriate by the court including the production of the public records sought by the plaintiff.
C. A finding by the court that the defendant and/or other employees of the Palm Beach County Office of the Supervisor of Elections have unlawfully, maliciously, wilfully, and knowingly violated the public records law.
D. A finding by the court that the plaintiff and/or its representatives can review the requested records where they are normally kept pursuant to the public records law.
E. An order awarding the plaintiff costs and attorney's fees under section 119.12, Fla. Stat.
F. Any other relief the court deems proper.
Harriet Rae Freeman, Esq.
Fla. Bar No. 0083038
Barbara J. Scheffer, Esq.
Fla. Bar No. 968625 Attorneys for BLACK BOX VOTING, INC.