Orten v. Utah County

2024 UT App 132

THE UTAH COURT OF APPEALS

JENNIFER ORTEN AND SOPHIE ANDERSON,
Appellants,
v.
UTAH COUNTY, UTAH COUNTY BOARD OF COUNTY COMMISSIONERS,
JUAB COUNTY, JOHN CRIPPEN, MILLARD COUNTY, DEAN DRAPER,
AND DEIDRE HENDERSON,
Appellees.

Opinion
No. 20220782-CA
Filed September 19, 2024

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 220400417

Chad C. Shattuck, Attorney for Appellants
Sean D. Reyes, Stephen W. Geary, Scott D. Cheney,
and Gregory N. Hoole, Attorneys for Appellees

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER
concurred.

TENNEY, Judge:

¶1 Jennifer Orten and Sophie Anderson requested several
election-related documents from Utah, Juab, and Millard counties
(the Counties), pursuant to Utah’s Government Records and
Access Management Act (GRAMA). The Counties largely denied
the requests. Orten and Anderson later filed a complaint in
district court seeking judicial review of the denials. Lieutenant
Governor Deidre Henderson intervened and then moved to
dismiss the case, arguing that the Election Code rendered the
requested documents non-public and therefore not subject to
GRAMA’s disclosure requirements. The district court granted the
Orten v. Utah County

motion, and Orten and Anderson now appeal. For the reasons set
forth below, we affirm.

BACKGROUND 1

¶2 In December 2021 and January 2022, Orten and Anderson
separately requested four types of election-related documents
from the Counties. Orten requested what she referred to as “Cast
Vote Records” (the CVRs) and “Project Backup Databases”;
Anderson requested what she referred to as “Ballot Images” and
“Tabulator Tapes.” 2 Orten and Anderson planned to share these
documents with the public through “local and national
broadcasts, podcast interviews, radio, and media events.” The

1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Moulding Invs., LLC
v. Box Elder County, 2024 UT App 23, n.2, 545 P.3d 781 (quotation
simplified).

2. This court’s usual practice is to designate any alterations to the
record—including to capitalization—with brackets. See RainFocus
Inc. v. Cvent Inc., 2023 UT App 32, ¶ 6 n.7, 528 P.3d 1221 (noting
that while members of this court often “make unbracketed
changes to capitalization” in conjunction with a (quotation
simplified) or (cleaned up) parenthetical, we don’t do so when
citing to the record on appeal). In this case, however, we note that
for each of the four types of documents at issue, the names are
sometimes capitalized in the record but sometimes not (and
they’re sometimes capitalized inconsistently within even the
same document). To avoid both odd-seeming inconsistencies and
unnecessary clutter, we’ll capitalize the names of each type of
requested document in each usage without noting whether we’re
altering the record in any particular instance. Where similar-
sounding terminology appears in a statute or case, however, we’ll
leave the capitalization untouched from the original.

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two also planned to give the documents to several advocacy
organizations, as well as to local officials and state legislators.

¶3 With one partial exception, the Counties either denied or
simply didn’t respond to the requests. 3 The Counties that
expressly denied the requests asserted that the documents were
either “sealed” or “not public.” The Counties didn’t respond to
subsequent administrative appeals. 4

¶4 Orten and Anderson later filed a joint complaint in which
they sought both judicial review of the denials and a preliminary
injunction to prevent destruction of the documents during the
pendency of litigation. Among other points, the two argued that
because Utah law does not restrict the requested document types
by name, they are presumed to be “public” under GRAMA.

¶5 Of some note, all four of these document types lack
statutory definitions. In their complaint, Orten and Anderson
defined the four document types as follows:

• “Ballot Images are copies of ballots and are not the
originals.”

• A CVR “is a spreadsheet containing a sequential tally of
the votes cast during the course of the election . . . .”

• The “Project Backup Database contains a backup of the
election project database containing project files from the
election management server tabulators and any external

3. Juab County initially granted Anderson’s request in part and
produced some Tabulator Tapes.

4. Under Utah Code section 63G-2-401(5)(b)(i), if “the chief
administrative officer fails to make a decision on an appeal of an
access denial within the time specified in Subsection (5)(a), the
failure is the equivalent of a decision affirming the access denial.”

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drives, such as log files, reports, audio files, and backups
of the ballots, etc.”

• “Tabulator Tapes are the means for calculating vote totals
and are not a ballot.” 5

¶6 The Lieutenant Governor filed a motion to intervene in the
case, citing her role as “chief election officer of the State of Utah,”
and the district court granted that motion. After joining the case,
the Lieutenant Governor filed a motion to dismiss pursuant to
rule 12(b)(6) of the Utah Rules of Civil Procedure, and the
Counties joined in that motion. In that motion, the Lieutenant
Governor argued that the Election Code comprehensively
governs access to all “Election Materials,” thereby removing them
from GRAMA’s reach. In her view, various provisions from the
Election Code (such as its regulations governing access to and
destruction of “ballots” and “election returns”) demonstrate a
legislative intent to broadly restrict all election-related
documents.

¶7 The district court agreed with the Lieutenant Governor’s
arguments and granted the motion to dismiss. In its written
ruling, the court ruled that the “Election Code comprehensively
governs access to and the retention of documents related to an
election.” The court also concluded that the Election Code’s
“broadly defined categories of election-related materials—when
combined with the equally broad definition of ballot and election
returns—sweep within their scope” each of the four kinds of
documents at issue. In this sense, the court ruled that “the Election
Code trumps the provisions of GRAMA on which” Orten and
Anderson relied. From there, the court ruled that the Election
Code “restricts” or “limits access” to each kind of document that
Orten and Anderson sought because, in the court’s view, each

5. Orten and Anderson also initially asked for other types of
records beyond these four, but they did not seek judicial review
of the denials relating to the other types of documents.

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kind of document qualified as either a “ballot” or an “election
return.”

ISSUE AND STANDARD OF REVIEW

¶8 Orten and Anderson appeal the district court’s dismissal of
their complaint. “Because a trial court’s grant or denial of a
motion to dismiss is a question of law, the standard of review is
correctness.” Moulding Invs., LLC v. Box Elder County, 2024 UT
App 23, ¶ 21, 545 P.3d 781 (quotation simplified). “This standard
of review grants no deference to the decision of the district court.”
Id. (quotation simplified).

ANALYSIS

¶9 Under GRAMA, a “record is public unless otherwise
expressly provided by statute.” Utah Code § 63G-2-201(2). A
record is “not public” if it is designated as “private, controlled or
protected” by GRAMA or if “access is restricted pursuant to court
rule, another state statute, federal statute, or federal regulation.”
Id. § 63G-2-201(3). In its ruling, the district court concluded that
access to each type of document was “restricted” by “another state
statute”—namely, the Election Code. Orten and Anderson
challenge the district court’s conclusion, but we agree with the
district court with respect to each kind of document.

¶10 The Election Code sets forth a comprehensive scheme
governing the processes associated with elections, and a number
of its provisions restrict the public’s right to access certain kinds
of associated documents. To begin, election judges tally ballots. Id.
§ 20A-4-101 to –102. This process is open to the public at counting
centers, id. § 20A-4-104(2)(b)(i), and it may be observed at a
polling place by any voter who registers as a “watcher” with “the
administering election officer,” id. §§ 20A-4-102(7), 20A-3a-801(2).
After the initial tally, the votes are “canvassed,” or reviewed and

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made official at county and state levels. Id. §§ 20A-4-301 to – 306. 6
The canvass is held in public. See id. § 20A-4-303(1)(b). At this
stage, the board of canvassers receives access to “all ballots,
registers, books, and forms related to the election,” which it
“inspect[s]” and “review[s]” before certifying the results. Id.
§ 20A-4-303(1)(a)(iii)–(b)(ii).

¶11 The statute states that as “soon as the returns are
canvassed, the election officer shall file the election returns and
papers produced before the board as required by Section 20A-4-
202.” Id. § 20A-5-408(2). But despite this internal cross-reference,
section 20A-4-202 itself doesn’t then use the same term “papers
produced before the board.” Instead, in the relevant provisions,
section 20A-4-202 directs election officers to “ensure” that “all of
the ballots and election returns” have been “sealed” by poll
workers. Id. § 20A-4-202(1)(a)–(b); see also id. § 20A-4-104(10)
(directing election officers to “seal and retain the programs, test
materials, and ballots as provided in 20A-4-202” for ballots
counted electronically); id. § 20A-4-106(1)–(2) (directing election
officers to “store” manual “ballots” and “election returns” after
the canvass and noting that, following storage, “the ballots may
not be examined by anyone” outside of specific exceptions). 7 In
accordance with these provisions, officers are directed to “deposit
and lock the ballots and election returns in a safe and secure
place.” Id. § 20A-4-202(1)(c), (d)(ii). They are directed to then
“preserve ballots for 22 months after the election or until the time
has expired during which the ballots could be used in an election
contest” and “preserve all other official election returns for at least

6. “‘Canvass’ means the review of election returns and the official
declaration of election results by the board of canvassers.” Utah
Code § 20A-1-102(9).

7. Utah Code section 20A-4-106 was amended after Orten and
Anderson filed their GRAMA request. Compare Utah Code § 20A-
4-106 (2024), with id. (2022). Because the amendments are
immaterial to the dispute in front of us, we cite the current version
of the code for convenience.

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22 months after an election”; “after that time,” election officers are
to “destroy them without opening or examining them.” Id. § 20A-
4-202(2)(b)–(d). By directing officials to retain and then destroy
these “ballots” and “election returns” without opening or
examining them, this statute clearly restricts access to both
categories of documents.

¶12 Under this scheme, then, the question here is whether any
of the document types at issue qualify as either “ballots” or
“election returns.” Id. If they do, their access is “restricted
pursuant to . . . another state statute” and they are “not public”
for purposes of GRAMA. Id. § 63G-2-201(3).

¶13 The Election Code defines these terms as follows:

• “‘Ballot’ means the storage medium, including a paper,
mechanical, or electronic storage medium, that records an
individual voter’s vote,” but it “does not include a record
to tally multiple votes.” Id. § 20A-1-102(3).

• “‘Election returns’ includes: (a) the pollbook, the military
and overseas absentee voter registration and voting
certificates, one of the tally sheets, any unprocessed ballots,
all counted ballots, all excess ballots, all unused ballots, all
spoiled ballots, the ballot disposition form, and the total
votes cast form; and (b) the record, described in Subsection
20A-3a-401(8)(c), of voters contacted to cure a ballot.” Id.
§ 20A-1-102(26).

¶14 With this framework, we now address each of the four
kinds of documents at issue in this appeal.

Ballot Images

¶15 Orten and Anderson first request access to Ballot Images,
which they defined in their complaint as being “copies of ballots”
that “are not the originals.” We have no difficulty concluding that
these are restricted by the Election Code. Again, under the

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Election Code, a “ballot” is “the storage medium, including a
paper, mechanical, or electronic storage medium, that records an
individual voter’s vote.” Id. § 20A-1-102(3)(a). Like the original
ballot, a copy of a ballot would be a “storage medium” that
“records an individual voter’s vote.” Thus, under the plain
language of the statute, we conclude that a copy of a ballot would
qualify as a ballot. Other courts have recognized as much in
similar disputes. As pointed out by the Court of Appeals of New
York, for example, holding otherwise “would allow statutory
protections to be easily evaded merely by requesting a copy of an
otherwise exempt document rather than the original—an
interpretation that would effectively nullify” the statutory
exemptions at issue. Kosmider v. Whitney, 132 N.E.3d 592, 603 (N.Y.
2019); cf. AUDIT-USA v. Maricopa County, 525 P.3d 279, 280-82
(Ariz. Ct. App. 2023) (denying a public records request for “ballot
images” or “copies of the ballot images” where the statute
mandated secure storage and eventual destruction of the
originals).

¶16 If it had wished to do so, the legislature could have created
a statutory exemption that would give the public a right of access
to copies of the original ballots. But Orten and Anderson have not
pointed to any section of the Election Code in which our
legislature did. And to the seeming contrary, the Election Code
provides that if “copies of ballots” are made pursuant to a formal
legislative audit, these copies are “not a record” and are “not
subject to disclosure” under GRAMA. Utah Code § 20A-4-
202(5)(a), (b) (emphases added). It is hard to imagine why the
legislature would specify that copies of ballots that are made for
an authorized statutory purpose are not subject to public
disclosure if the legislature also believed that a person making a
GRAMA request can simply request copies of the originals for
their own purposes and thus obtain access to them.

¶17 Resisting this conclusion, Orten and Anderson point to
various policy considerations that, in their view, suggest that the
restrictions on public access to the original ballots should not
apply to copies. For example, they point to a news article about a

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decision made by the Salt Lake District Attorney’s office in 2002
to release some Ballot Images in response to a GRAMA request.
In that article, a local official explained the apparent reasoning for
this decision as follows: “the actual ballots are protected by state
law to prevent tampering or damage, but the electronic files can
be made public because they do not contain personal
information.” 8 Orten and Anderson echo this argument,
contending that because Ballot Images do not contain “any
private information or personally identifying data,” there “is no
identifiabl[e] public policy interest” in favor of restricting access.

¶18 An isolated statement from a single public official that was
made 20 years ago is of course not binding on this court now,
particularly when it stands in contrast to the plain language of a
statute. Moreover, protecting the privacy of personally
identifying data is not the only “identifiabl[e]” policy interest in
play. In GRAMA’s own statement of “Legislative intent,” the
legislature recognized that, separate from the “right of privacy in
relation to personal data gathered by governmental entities,”
there’s a “public policy interest in allowing a government to
restrict access to certain records . . . for the public good.” Id. § 63G-
2-102(1)–(2). And on this front, we agree with the Lieutenant
Governor that the Election Code’s provisions restricting access to
various kinds of documents may promote a number of
identifiable public purposes, including “ballot secrecy, anti-
tampering measures, accuracy, and finality.” See also Kosmider, 132
N.E.3d at 603 (recognizing these same interests). And here, the
interest in finality identified by the Lieutenant Governor seems
especially relevant to restricting access to copies of ballots outside
the context of a formal election contest.

¶19 In any event, “it is elementary that we do not seek guidance
from . . . relevant policy considerations when the statute is clear

8. See Josh Loftin, GOP to get ’02 election files, Deseret News (Jan.
17, 2003), https://www.deseret.com/2003/1/17/19699500/gop-to-
get-02-election-files [https://perma.cc/Q4V4-TEEN].

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and unambiguous.” 9 In re R.B.F.S., 2012 UT App 132, ¶ 15, 278
P.3d 143 (quotation simplified). And as indicated, we believe that
under the plain language of the Election Code, the Ballot Images
that Orten and Anderson requested qualify as “ballots.” As a
result, they’re restricted by the Election Code and thus not
publicly accessible under GRAMA. The district court therefore
did not err in dismissing this portion of the complaint.

The CVRs

¶20 Orten and Anderson next request access to Cast Vote
Records or CVRs. According to their complaint, a CVR “is a
spreadsheet containing a sequential tally of the votes cast during
the course of the election.”

¶21 The Lieutenant Governor initially argues that these reports
are restricted because they qualify as ballots. We have some
skepticism as to whether this is so. After all, the Election Code
states that the term “ballot” “does not include a record to tally
multiple votes.” Utah Code § 20A-1-102(3)(b). And on the face of
the complaint, a CVR is alleged to be indeed just that—a
“spreadsheet containing a sequential tally of the votes.”

¶22 But we need not definitively decide this question because
we agree with the district court’s conclusion that access to the

9. One exception to this general principle is found in the absurdity
doctrine. See Bagley v. Bagley, 2016 UT 48, ¶¶ 27–28, 387 P.3d 1000
(explaining that courts will “reform[] unambiguous statutory
language” under the absurdity doctrine only where “the
operation of the plain language” is “so overwhelmingly absurd
that no rational legislator could have intended the statute to
operate in such a manner” (quotation simplified)). But Orten and
Anderson have not argued that this doctrine applies. And given
the policy considerations cited by the Lieutenant Governor, we
cannot say that no rational legislator could have intended for
Ballot Images to be treated in the same way as ballots.

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CVRs is still restricted under the statutory scheme set forth in
Utah Code section 20A-4-202(2)(b)–(d). 10

¶23 As noted, the term “Election returns”

includes: (a) the pollbook, the military and overseas
absentee voter registration and voting certificates,
one of the tally sheets, any unprocessed ballots, all
counted ballots, all excess ballots, all unused ballots,
all spoiled ballots, the ballot disposition form, and
the total votes cast form; and (b) the record,
described in Subsection 20A-3a-401(8)(c), of voters
contacted to cure a ballot.

Id. § 20A-1-102(26). And as the CVR is defined in the complaint—
“a spreadsheet containing a sequential tally of the votes cast
during the course of the election”—the CVR is not an item that’s
set forth in this list. But this doesn’t end the statutory inquiry.

10. In reference to this same statutory scheme, the district court
ruled that the “broadly defined categories of election-related
materials—when combined with the equally broad definition of
ballot and election returns—sweep within their scope cast vote
records, project backup databases, and tabulator tapes Plaintiffs
seek by way of a GRAMA request.” In her brief, the Lieutenant
Governor adopts this same framing, asserting that “ballots” and
“election returns” together constitute a category of “[e]lection
materials” that are restricted under Utah Code section 20A-4-
202(2), and she then asserts that the CVRs are restricted under this
rubric.
At the risk of splitting hairs, however, we note that the
scheme at issue—section 20A-4-202(2)—doesn’t refer to
“[e]lection materials.” Rather, as explained, it restricts access to
“ballots” and “election returns.” Thus, while we agree with most
of the framing set forth by the Lieutenant Governor and the
district court, we slightly diverge in that we conclude that the
document types at issue qualify as “election returns.”

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After all, this list is preceded by the introductory verb “includes,”
which thus indicates that the list is non-exhaustive. See, e.g.,
Mallory v. Brigham Young Univ., 2014 UT 27, ¶ 16, 332 P.3d 922
(holding that a statute’s use of the word “includes” before a list
“clearly contemplated” the possibility that something could
satisfy the overarching term even if it didn’t “fit[] neatly into one
of the listed categories” (quotation simplified)); Boyle v.
Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810 (“When ‘including’
precedes a list, its common usage is to indicate a partial list.”);
Asset Acceptance LLC v. Utah State Treasurer, 2016 UT App 25, ¶ 21
n.10, 367 P.3d 1019 (noting that “’including’ or ‘includes’ is a
somewhat unique word in the English language, particularly with
regard to its legal usage, because it has long been held to
unambiguously indicate a non-exhaustive list”).

¶24 In our view, the express terms of three provisions from the
Election Code work together to restrict access to the CVRs.

• First, as noted earlier, the election officer is required to
“make available to the board of canvassers . . . all ballots,
registers, books, and forms related to the election.” Utah Code
§ 20A-4-303(1)(a)(iii) (emphasis added).

• Second, the Election Code provides that after this canvass
is complete, officers must “file the election returns and
papers produced before the board as required by Section 20A-
4-202.” Id. § 20A-5-408(2) (emphasis added).

• Third, as also noted, section 20A-4-202 itself doesn’t use the
phrase “papers produced before the board.” Instead, in
subsection (2), it sets forth a storage-and-disposition
scheme for “ballots” and “all other official election
returns.” Id. § 20A-4-202(2)(b), (c). It then provides that for
“ballots” and “election returns,” the election officer shall,
after the designated time, “destroy them without opening

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or examining them,” id. § 20A-4-202(2)(d), thereby
restricting the public’s access to them. 11

¶25 Under this three-part sequence, we agree with the district
court that access to the CVRs is restricted. First, by their own
account, Orten and Anderson are requesting a “spreadsheet” kept
by election officials that “contain[s] a sequential tally of the votes
cast during the course of the election.” As a matter of plain
language, such a spreadsheet would qualify as a “form[] related
to the election” for purposes of section 20A-4-303(1)(b)(i). Id.
§ 20A-4-303(1)(a)(iii). Moreover, we note that sections 20A-4-
303(1)(a)(iii) and -303(1)(b)(i) refer to “all . . . forms related to the
election” and “any . . . forms requested by the board of
canvassers.” (Emphases added.) The legislature’s inclusion of the
words all and any further suggests that the legislature intended
for this first step to apply broadly.

¶26 Second, because these spreadsheets qualify as official
“forms related to the election,” id. § 20A-4-303(1)(a)(iii), they’re
properly considered to be part of the “election returns and papers
produced before the board” that, under section 20A-5-408(2),
must be “file[d]” under the terms set forth in section 20A-4-202.

¶27 This leaves the final step: whether, for purposes of section
20A-4-202(2), they qualify as “election returns” for which access
is restricted. We conclude that they do.

11. Utah Code section 20A-4-202(3)(a) sets forth a different filing
scheme for “all tabulating cards and other materials used in the
programming of the automatic tabulating equipment.” No one
has contended that the CVRs, as defined, would constitute
“tabulating cards” or “materials used in the programming of the
automatic tabulating equipment.” Thus, the filing scheme set
forth in section 20A-4-202(2) (which governs “ballots” and
“election returns”) would be the only potentially applicable
provision from section 20A-4-202.

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¶28 When interpreting statutory schemes, Utah courts often
apply the “‘whole-text canon,’” which “‘calls on the judicial
interpreter to consider the entire text, in view of its structure and
of the physical and logical relation of its many parts.’” Bryner v.
Cardon Outreach, LLC, 2018 UT 52, ¶ 12, 428 P.3d 1096 (citing
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 167 (2012)); see also Utah Am. Energy Inc. v. Labor
Comm’n, 2021 UT App 33, ¶ 15, 484 P.3d 1195 (holding that to
“ascertain the plain meaning of statutory text, we read it in light
of its linguistic, structural, and statutory context,” and “each
provision is considered in the context of the overall statutory
scheme” (quotation simplified)).

¶29 Here, since the legislature broadly stated (under the second
step) that election returns and papers produced before the board
are filed under the terms set forth in section 20A-4-202, and since
that scheme itself is plainly restrictive, we see no reason to
conclude that the legislature intended to differentiate between
“election returns” and “papers produced before the board” for
these purposes. Instead, considering how this “overall statutory
scheme” operates, Utah Am. Energy Inc., 2021 UT App 33, ¶ 15, we
believe that the phrase “papers produced before the board”
functions as an add-on to “election returns” in a belt-and-
suspenders kind of manner. See, e.g., Scalia & Garner, Reading Law
at 176-77 (noting that “[s]ometimes drafters . . . do include words
that add nothing of substance, either out of a flawed sense of style
or to engage in the ill-conceived but lamentably common belt-
and-suspenders approach” (emphasis in original)).

¶30 Putting these steps together, then, we conclude that since
the CVRs are “forms related to the election” (step 1), and since
they’re also “election returns and papers produced before the
board” (step 2), access is accordingly restricted under the scheme
set forth in section 20A-4-202(2) (step 3).

¶31 In opposing such a view, Orten and Anderson rely heavily
on GRAMA’s overarching statement that a “record is public
unless otherwise expressly provided by statute.” Utah Code § 63G-

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2-201(2) (emphasis added). In their view, the statutory analysis
we’ve set forth above is simply not clear enough to qualify.

¶32 We acknowledge the concern, but we disagree with its
application here. GRAMA’s reference to what’s “expressly
provided” from some other statute must still be amenable to some
form of reasonable interpretation under ordinary principles of
statutory construction. For example, this requirement couldn’t
refer to just the particular label that’s attached to a document.
After all, GRAMA applies statewide, and yet different entities
might have different naming conventions for otherwise similar
documents. If GRAMA were narrowed in such a fashion, an entity
could avoid release of records simply by renaming an otherwise-
covered document and thus frustrate the legislature’s purpose to
control which records are and are not public.

¶33 It’s true that the construction we’ve set forth above spans
several statutes. But the whole-text canon and the cases that have
applied it contemplate that legislatures sometimes do speak in
such a manner. And here, we regard each of the above steps, as
well as the links between those steps, to be clear enough to
expressly restrict public access to these documents, particularly
when the scheme as a whole is considered. For these reasons, we
conclude that the district court did not err in dismissing this
portion of the complaint.

Project Backup Database

¶34 Orten and Anderson next request what they’ve referred to
as the “Project Backup Database.” This database does not appear
to be a creature of any statute. And as indicated, Orten and
Anderson said in their complaint that this was a “backup of the
election project database containing project files from the election
management server tabulators and any external drives, such as
log files, reports, audio files, and backups of the ballots, etc.”

¶35 In its dismissal ruling, the district court appears to have
treated this request as being somewhat coterminous with the

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requests for the other kinds of records at issue. And in their
briefing on appeal, Orten and Anderson did not meaningfully
differentiate this request from the others, instead repeatedly
asserting that the dismissal of the portion of the complaint
relating to the Project Backup Database should be overturned for
the same reasons relating to those other requests. After oral
argument in this appeal, this court issued a supplemental briefing
order asking the parties to address certain legal questions that had
come up during deliberations—including, of some note, certain
questions relating to the scope of the requested records. In her
supplemental brief, the Lieutenant Governor expressed her
understanding that the Project Backup Database is a “compressed
copy of the complete contents of an election server for a specific
election”—i.e., that it’s essentially a “read-only” electronic backup
of the “ballot images and CVR[s].” In their supplemental brief,
Orten and Anderson did not describe it differently.

¶36 Based on that understanding (i.e., that the Project Backup
Database is an electronic file that contains a backup of the ballot
images and the CVRs), as well as the nature of the arguments
presented to us by Orten and Anderson (i.e., that this portion of
the dismissal ruling was allegedly infirm for the same reasons
Orten and Anderson have given regarding the other kinds of
records), we affirm the district court’s dismissal for the same
reasons given above. 12

12. To be clear, it’s at least arguable that the request for a Project
Backup Database was intended to be broader than just an
electronic database containing a backup of the ballot images
and/or the CVRs. But in their briefing on appeal, Orten and
Anderson have not meaningfully argued, much less persuaded
us, that either (i) there was a material difference between the
scope of the so-called Project Backup Database and the ballot
images or CVRs discussed above, or (ii) that any such difference
should have legally differentiated this request from the others as
far as whether the complaint should be dismissed. As a result,
(continued…)

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Orten v. Utah County

Tabulator Tapes

¶37 Finally, Orten and Anderson request access to Tabulator
Tapes. We affirm the dismissal of this portion of the complaint as
well.

¶38 In the GRAMA requests at issue, Anderson requested “the
Tabulator Tapes produced by all tabulators used in” certain
elections, “including the zero tapes printed prior to the start of the
election.” (Emphasis added.) Taking these requests at face value,
it seems that by “Tabulator Tapes,” what Anderson was
requesting was something that reported votes—i.e., a document
that, to use her words, was “produced by the tabulators.” And
this is consistent with how Anderson described these requests in
her opening brief. There, Anderson argued that she should be able
to access “a report or record to tally multiple votes (such as a CVR
or tabulator tapes).” And immediately under a subheading titled
“What are Tabulator Tapes?”, Anderson argued that Tabulator
Tapes do not qualify as “ballots” because the term “ballot” “does
not include a record to tally multiple votes.” In this sense,
Anderson has reinforced, in this appeal, that the “Tabulator
Tapes” at issue qualified as a “record to tally multiple votes.”

¶39 So viewed, we conclude that the district court properly
dismissed this portion of the complaint. And we do so for the
same reasons set forth above relating to the CVRs. An official
“tally” or “record to tally multiple votes” would qualify as a
“form[] related to the election” under Utah Code section 20A-4-
303(1)(b)(i). As such, it also would be subject to the filing scheme
set forth in Utah Code section 20A-4-202. And as explained, that
filing scheme provides that such documents are to be sealed,

while we affirm this dismissal on the basis set forth above, we
leave open the possibility that some future case might proceed
differently if it involves some combination of either a differently
defined GRAMA request or different arguments presented to the
courts.

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Orten v. Utah County

locked, deposited in a safe and secure place, stored for 22 months,
and then destroyed without being opened or examined.

¶40 In response, Anderson argues that her request for
Tabulator Tapes was actually broader. She points out that in the
complaint, she defined “Tabulator Tapes” as “the means for
calculating vote totals,” and consistent with this additional
definition, the complaint equated Tabulator Tapes with
Tabulating Cards. The reason this potential link might matter has
to do with Utah Code section 20A-4-202(3)(a). There, the Election
Code sets forth a filing scheme for “all tabulating cards and other
materials used in the programing of the automatic tabulating
equipment.” Id. With respect to such materials, section 20A-4-
202(3) states that the election officer:

• “shall package and retain” them;

• “may access” and “may make copies” of them;

• and “within 22 months after the election in which they
were used, may dispose of those materials or retain them.”

Id. § 20A-4-202(3)(a), (b)(i), (b)(ii), (b)(iv) (emphases added).

¶41 The use of the permissive “may” in these provisions stands
in contrast with the scheme set forth in section 20A-4-202(2) that
governs disposition of “ballots” and “election returns.” As
discussed, that scheme requires the election officer to destroy
those documents without ever opening or examining them. But
there’s no similar “without opening or examining” language
governing the disposition of the “tabulating cards and other
materials used in the programming of the automatic tabulating
equipment.” Id. § 20A-4-202(3)(a)–(b). Taking all this together, it
appears that the Election Code does not restrict public access to
Tabulating Cards in the same way that it restricts access to ballots
and election returns. Thus, if the request for Tabulator Tapes was
really a request for Tabulating Cards, then the court may have
erred in dismissing the complaint.

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Orten v. Utah County

¶42 But we still see no error in the dismissal. What’s at issue in
this appeal is whether the district court erred in dismissing the
complaint. What was at issue in the complaint, however, was
whether the Counties had improperly denied the GRAMA
requests that were filed by Orten and Anderson. Under Utah
Code section 63G-2-201(6)(b), a “governmental entity shall
provide a person with a certified copy of a record if . . . the person
identifies the record with reasonable specificity.” (Emphasis
added). We applied and enforced this requirement in Maese v.
Davis County, 2012 UT App 48, 273 P.3d 949. There, Maese
requested a property records database or, in the alternative, a
“compiled transaction report” for the last 20 years, but the county
refused to provide it on the grounds that the underlying records
in the database were already freely available through its websites.
Id. ¶¶ 2, 5 (quotation simplified). In his appeal to this court, Maese
argued that the publicly available documents did not satisfy his
request as the database he’d requested was “a new and
independent public record greater than the sum of its parts
because it contain[ed] metadata and other variables.” Id. ¶ 5
(quotation simplified). But we rejected this argument, in part,
because the original GRAMA request itself hadn’t been specific
enough to alert the county that Maese was requesting metadata.
Id. ¶¶ 6–7. We explained that where “the face of the GRAMA
request” did not “describe the same records” Maese sought on
appeal, the district court “was correct not to directly rule on the
validity of the [new] legal assertion in [the] complaint,” but that it
could instead focus on whether the county “sufficiently complied
with the GRAMA request Maese actually submitted.” Id.

¶43 The same is true here too. As explained, Orten and
Anderson didn’t ask for “Tabulating Cards” in their GRAMA
requests, nor did they ask for something that could be reasonably
construed as “materials used in the programming of the automatic
tabulating equipment.” Utah Code § 20A-4-202(3)(a) (emphases
added). Instead, as stressed by the Lieutenant Governor in her
brief, “the actual GRAMA requests reference only ‘tabulator
tapes.’” And again, we further note that these requests clarified
that they were seeking tapes that had been “produced by all

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Orten v. Utah County

tabulators used in” certain elections. (Emphasis added.) It was the
denial of these requests on these terms that was at issue in the
district court proceedings and is now before us on appeal.

¶44 Of some additional note, the district court appears to have
recognized this potential issue. At the hearing on the motion to
dismiss, the court asked Orten and Anderson’s counsel if there
was “a difference between a tabulator card and the tabulator tapes
that you seek.” In response, counsel said: “I don’t know the
answer to that. That’s a factual question. We’re going to have to
get experts in this case to tell us, are those the same thing?”

¶45 In our view, what’s significant about this exchange is that,
even when asked, Orten and Anderson’s counsel could not
definitively assert that the GRAMA requests were broad enough
to include Tabulating Cards. In light of this, the district court
could hardly be faulted for not concluding that these requests had
“identifie[d]” Tabulating Cards “with reasonable specificity.” Id.
§ 63G-2-201(6)(b). As a result, we see no basis for holding that the
court erred by not allowing the complaint to survive a motion to
dismiss on the basis of a request for tabulator cards that Orten and
Anderson never made. 13

13. As explained, we see a divergence between how Tabulator
Tapes were described in the GRAMA requests and how they were
defined in the complaint. For this reason, we’ve held that the
Counties (and by extension the district court) could properly
assess these requests on their own original terms. By point of
contrast, we see no similar divergence with respect to the other
kinds of documents at issue in this appeal. The terms Ballot
Images and CVR weren’t defined in the GRAMA requests at issue.
And while “Project Backup Database” was defined in the related
requests, the definition that was given said that the request was
for “software data files collected from the election” and a
“backup” of “data from the machines.” This definition seems
consistent (and at a minimum, does not seem inconsistent) with
the one used in the complaint and that we assessed above.

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Orten v. Utah County

CONCLUSION

¶46 For the reasons set forth above, we affirm the district
court’s dismissal of the petition for judicial review.

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