Access to voter records by a political consultant, an issue that appears to straddle two statutes, is being appealed to the Arizona Supreme Court.

The information sought prior to the 2002 election by Primary Consultants was denied by Maricopa County officials on the grounds that the Phoenix firm planned to use voter data for commercial purposes. Such use is prohibited under the public records statute, Title 39.

But Primary Consultants argues that under Title 16, which governs disclosure of voter records for purposes related to political activity, those records should be released, with statutorily required redactions, including Social Security numbers and signatures.

The county has several concerns in general and not directed at Primary Consultants, such as the possibility of ID theft and a diminished interest in election participation if voters are going to be subjected to solicitations from all sorts of businesses.

In June 2003, Primary Consultants, headed by Paul Ulan, took its case to Maricopa County Superior Court, which supported the county’s decision.

But on May 12 of this year, the Arizona Court of Appeals reversed that ruling and sent the case back to the lower court.

In The Hands Of The Supreme Court

Instead, the county filed a petition with the state Supreme Court on June 10, urging that the denial of the records request be upheld. Court officials say it is unlikely the justices will decide whether to accept the case until the newest member, Scott Bales, assumes his place on the bench later this summer.

Stanley Watts, an attorney representing Primary Consultants, was asked by Arizona Capitol Times to explain why his client is entitled to voter records from July 1, 2000, to Oct. 1, 2001, records that he didn’t receive. Primary Consultants also sought copies of requests by others for voter information, which the county subsequently has agreed to provide.

“Primary Consultants is a small political consultant, which assists campaign committees and candidates in deciding whether to seek office,” Mr. Watts said. “Part of that includes helping them in gathering information on who voters are and who voted in the last election so they can be contacted through mailings. It helps target the most efficient use of the funds they raise. In order to do that, candidates and consultants have to have access to information about voters that the county collects.”

Maricopa County Elections Director Karen Osborne said she would have provided the requested records had Primary Consultants offered proof that it was representing a candidate of campaign committee.

“If Mr. Ulan had come to us representing a political candidate or committee, and the candidate or committee states that Paul Ulan will be our person, we require the committee or candidate to sign a public records request, and we will provide those records,” Ms. Osborne said.

Mr. Watts said: “All this case boils down to is the Appeals Court held that the county and the lower court misinterpreted who has legitimate access to voter records. In the case of our client, the county determined that his request came under commercial use. But his use of the information is for a political election and is not for commercial use, the Appeals Court says.”

The county relied on Title 39.121.03 in determining that Primary Consultant fell into the commercial use category.

“But the county didn’t acknowledge 16-168, the law about voter records being accessible if used for election or campaign purposes,” Mr. Watts said. “Title 16 has several restrictions but no outright denial. The heart of the appeal had the court looking closely at commercial use and the court determined that political or election use doesn’t fit that definition.”

The Appeals Court determined that although Primary Consultants is a for-profit business and the use of voter information would enhance its business, use in itself is not considered commercial.

The court states: “This is consistent with our prior determination that the definition of commercial purpose is ‘aimed at the direct economic exploitation of public records not at the use of information gathered from public records in one’s trade or business.’”

In its petition to the Supreme Court, the county argues that the Legislature in 2001 amended 16-168 “to explicitly prohibit the distribution of precinct registers and others lists and information derived from registration forms for commercial purposes (as defined in ARS 39-121.03) because of concern about privacy interests of registered voters.”

The Appeals Court also states: “The sale of registers, lists and information derived from registration forms to a candidate or a registered political committee for use specifically authorized … does not constitute use for a commercial purpose.”

Ms. Osborne said the key issue is the protection information in voter files.

A ‘Semi-Public’ Document

“The registration file is a semi-public document for election purposes for political parties to contact people,” Ms. Osborne said. “It is not for commercial purposes and it is not for use by any other group or person to advance their business. When Mr. Ulan came to us as a consultant for his own use, we felt that was commercial and for no other purpose than to enhance his business. He had no client, and we feel that does make it commercial.”

If the Appeals Court ruling stands, “there will be a further deterioration of people not wanting to register and participate.”

If voter files are open to any business, Ms. Osborne said, there is the increased potential for identity theft.

“Those files have an extremely deep level of information about people,” she said. “Our concern is that this file of 1.6 million people would be open for any business. Everybody from a pest control firm to any other business would have access to that data.”

A second aspect, Ms. Osborne said, is that court orders protect voter information of law enforcement officers, judges, probation officers and victims of domestic abuse.

In the past year, the county has received 1,279 court orders to protect addresses for various reasons, Ms. Osborne said.

“If there’s an abuse situation or if people have been stalked, that file needs to be protected,” Ms. Osborne said.

Mr. Watts said his position is that the statute focuses on the use of the information, not the user. If his client’s position is upheld, he said, he doesn’t believe it will have a major impact on the election process.

He has until July 8 to file a response to the county’s Supreme Court petition. —