Fulton County may be shielding 2021 emails with voting machine inspector. But why?

A rural Pennsylvania county may be withholding officials' communications with a company that inspected 2020 voting machines — and has shown no sign of changing course.

The Fulton County government has been an ongoing source of litigation related to the last presidential election cycle. Republican commissioners' legally fraught attempts to find fraud or hacking within Dominion Voting Systems machines landed the county in contempt of court in 2023 and liable for approximately $1 million in attorney and associated fees incurred by Dominion and the Pennsylvania Department of State.

Amid these more prominent legal battles, the county has also lost state Office of Open Records disputes in which officials appear to be shielding their off-channel conversations about Wake TSI's 2021 report on Fulton County's election.

An email obtained by the nonprofit American Oversight shows Gene Kern, executive vice president of Wake TSI, trying to set up a private communication chain with Fulton County officials. The message was sent only to Randy Bunch and Stuart Ulsh, the Republicans on the board, with Democrat Paula Shives excluded.

"Would you please share a personal email address with me?" Kern asked on Feb. 10, 2021, little more than a week before his findings were published Feb. 19 of that year.

Groups including American Oversight, the American Civil Liberties Union and, most recently, Occupy Democrats Executive Editor Grant Stern have launched proceedings against the county for these communications. The USA TODAY Network is also in the midst of an Office of Open Records appeal against the county for emails between Fulton County commissioners and Wake TSI.

At question is what, if anything, Wake TSI executives discussed privately with the local GOP commissioners less than two weeks before releasing their assessment of the 2020 election.

Though Wake TSI's report found no "error, technology interference, fraud, or misconduct," it flagged some ballot scanning errors and a lack of pre-election accuracy testing from the commonwealth. The authors of Wake TSI's report wrote: "While these may seem minor the impact on an election can be huge."

Under Pennsylvania law, elected officials can't shield their discussions about public business by using their private cellphones, email addresses or social media accounts.

"The Right-to-Know Law itself, the text of the act, doesn't say anything about the use of publicly funded emails versus private," said Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association. "However, the law makes clear that records that deal with public business are presumptively public."

"Pennsylvania's appellate courts have interpreted, rightly so, that public officials cannot avoid scrutiny by using private email accounts to talk about public business."

After the Office of Open Records decided in American Oversight's favor, the organization filed a mandamus action against Wake TSI for its communications with county commissioners. Fulton County Judge Todd M. Sponseller sided with American Oversight, ordering Wake TSI to provide copies of the requested records within 30 days of the July 11 ruling.

Wake TSI has not released the communications, and did not respond to a USA TODAY Network inquiry about the matter.

A spokesperson for American Oversight noted that their case against Fulton County and Wake TSI is in the discovery phase.

“In 2020, Fulton County officials sought to undermine the integrity of the presidential election by having Wake TSI conduct a sham audit of the results,” American Oversight Deputy Executive Director Chioma Chukwu said in a separate statement. “We anticipate our lawsuit against the county and Wake TSI will pry loose audit-related information they have long witheld. As we approach yet another election, it is critical that Pennsylvania voters have access to records that shed light on their elected officials’ attempts to subvert their will.”

In Stern's similar appeal to the Office of Open Records, the state agency ruled Nov. 17 that Fulton County hadn't met a burden of proof in its argument that the commissioners' off-channel communications with Wake were nonexistent or exempt from disclosure.

Thomas Carroll, who represents one-half of Fulton County's special counsel in election-related matters, objected by saying in part that the local government has no right to officials' private conversations.

"The OOR has strayed recklessly outside the boundaries of the law. Its decision violates privacy rights and enables an impermissible fishing expedition through personal data," Carroll wrote.

"Such an astonishing power grab must be condemned and reversed immediately."

Phone calls to Carroll and to James Stein, the Fulton County solicitor, were not returned by deadline. Bunch did not respond to an email.

The USA TODAY Network also reached out to Michigan attorney Stefanie Lambert, Carroll's special counsel colleague for Fulton County.

On March 18, the U.S. Marshals Service took Lambert into custody and transferred to her to officers with the Metropolitan Police Department in Washington, D.C. A member of the Metropolitan Police Department confirmed that Lambert was taken to jail in D.C. She was later released and returned to Michigan.

The Associated Press has reported that Lambert, who has been representing the rural Pennsylvania county in its litigation against Dominion Voting Systems and the commonwealth's Department of State since 2022, was arrested on a warrant after distributing internal emails from Dominion.

The Dominion emails were obtained by Lambert through the discovery process in her work for former Overstock CEO Patrick Byrne, who was among those who unsuccessfully urged former President Donald Trump to seize voting machines over unfounded conspiracy theories in the weeks following the 2020 election. Byrne is in the midst of a defamation suit from Dominion.

Lambert's warrant had been issued after she missed a Michigan hearing related to undue possession of a voting machine charges.

On the social media platform X, convicted Jan. 6 rioter and current prison inmate Jake Lang played a recording from Lambert. She told her supporters she's already back to work for her clients.

"In the end I have full faith in truth and justice," Lambert said.

Bruce Siwy is a reporter for the USA TODAY Network's Pennsylvania state capital bureau. He can be reached at bsiwy@gannett.com or on X at @BruceSiwy.

This article originally appeared on York Daily Record: Wake TSI emails with Fulton County PA ruled public by OOR