When people are denied public records they routinely reach out to us for assistance and more often than not, we are able to request the same records and we get them.  When this happens it is an indicator of a problem because if we are able to get those records, so too should others.

The DuPage County Clerk Jean Kaczmarek and her Chief Deputy Scott Mackay signed a contract with Dominion Voting Systems Inc. on January 24, 2020.  After a copy of that contract was requested by an individual and denied, we were asked to assist in getting the same records.  Our Freedom of Information Act request was granted and we find the Dominion Voting Systems encouragements to avoid transparency very troubling.

From the Contract:

• 8. Customer shall take any and all action necessary or appropriate to assert all applicable or potentially applicable exemptions from disclosure under the FOIA Statute and take all other legally permissible steps to resist disclosure of the Information including, without limitation, commencement or defense of any legal actions related to such disclosure. In the event Customer receives a request for Information under the FOIA Statute, Customer shall inform Dominion of such request within ten (10) days of Customer's knowledge or such shorter period as necessary under the FOIA Statute to avoid prejudice to Dominion's ability to oppose disclosure, Dominion shall use its best efforts to assist and support Customer's exercise of any statutory exemption in denying a records request under the Freedom of Information Act (5 ILCS 140/1 et seq.). In the event that Customer becomes subject to fines, costs or fees pursuant to Section 11 of the Freedom of Information Act (5 ICLS 140/11) relying upon Dominion's claim that the information requested is exempt, Dominion shall indemnify Customer for those fines, fees and costs, notwithstanding any other provisions In this agreement. In the event Customer is required by court order to disclose any of the Information, Customer shall give written notice to Dominion at the earlier as soon as reasonably practical after tile imposition of such an order.

There are exemptions under FOIA regarding trade secrets and we understand such exemptions and their applicability to certain information.  However, the language in this contract focuses on encouraging, in fact, instructing the County that they "shall" take any and all action necessary or appropriate to assert "potentially applicable exemptions from disclosure" and to take all other legally permissible steps to resist disclosure of the information.

So there is no confusion, public records are either exempt or not.  In fact, in the event a document has information that is exempt and also contains non-exempt information, the public body "may" elect to redact the exempt information.  There is no obligation to redact exempt information which points to exemptions being an option.

Any public official who signs a contract that directs them to resist transparency raises numerous red flags, especially when we are talking about one of the most sacred parts of our Republic, voting.

Another troubling part of the contract that jumped out at me was the language in section 9.

9.2. Reverse engineer, disassemble, decompile, decipher or analyze the Software in whole or in part;
9.3. Alter or modify the Software in any way or prepare any derivative works of the Software or any part or parts of the Software;

Considering this software deals with the people's voting results, this contract prohibits the County to analyze the software.  If there was any type of vote tally concerns it appears the County is prohibited to analyze the Software.  Analyzing the software would be one of the first steps to determine or identify if there was or was not a problem in the vote tally.

The most concerning issue, in light of all that national attention regarding Dominion and our elections, is the reference of modifying the software.  The county is prohibited from altering or modifying the software.  While I agree nothing should be altered modified, such a prohibition appears to indicate the software can in fact be altered or modified.

If the county is prohibited from analyzing the software, how on earth can a determination be made if the software was altered or modified?

We understand there are vote totals concerns being investigated in DuPage County and will update with a separate article as that information is gathered.

A copy of the Dominion Contract can be downloaded at this link or viewed below. Key points in the article can be found on page 4.