| Matter of Kosmider v Whitney |
| 2018 NY Slip Op 02517 [160 AD3d 1151] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Bethany Kosmider,Respondent, v Mark Whitney, as Commissioner of the Essex County Board of Elections,Respondent, and Allison McGahay, as Commissioner of the Essex County Board of Elections, etal., Appellants. |
Law Offices of James E. Walsh, Schenectady (James E. Walsh of counsel), for AllisonMcGahay, appellant.
Daniel T. Manning, County Attorney, Elizabethtown, for William B. Ferebee, appellant.
Law Office of Daniel R. Novack, New York City (Daniel R. Novack of counsel), for BethanyKosmider, respondent.
James E. Long, Albany, for Mark Whitney, respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Auffredou, J.), entered January25, 2017 in Essex County, which, among other things, granted petitioner's application, in aproceeding pursuant to CPLR article 78, to annul a determination of respondent William B.Ferebee denying petitioner's Freedom of Information Law request.
The dispute before us poses a question of public significance: whether electronic images[*2]of ballots cast in an election are accessible under the Freedomof Information Law (see Public Officers Law art 6 [hereinafter FOIL]). We conclude that,once electronic ballot images have been preserved in accordance with the procedures set forth inElection Law § 3-222 (1), there is no statutory impediment to disclosure and theymay be obtained through a FOIL request.
Our analysis is informed by the advent of electronic voting in New York (seegenerally Election Law § 7-202 [4]). As more fully set forth in the record, uponinserting a ballot into an electronic voting machine, it is scanned and an image of it is stored in arandom fashion on portable flash drives, which preserve the secrecy of the ballot. The originalballot is then deposited by the scanner into a secure ballot box under the machine. After the pollsclose, the machine prints out a tabulated results tape containing the official record of votes caston that particular machine. One of the flash drives is removed from the machine and returned tothe applicable board of elections, while the other remains with the machine and is used duringthe recanvass process. As is relevant here, the content on the portable flash drives is then copiedto permanent electronic storage media, such as a hard drive, after which the temporary storagemedia may be reused in another election.[FN1]
Following the November 3, 2015 general election, petitioner requested from the EssexCounty Board of Elections (hereinafter the Board) copies of the electronic ballot images recordedby the voting machines used in that election. Respondents Mark Whitney and Allison McGahay,the two Commissioners of the Board, were divided on whether to provide petitioner with theballot images and referred the request to the Essex County Attorney, who was also the EssexCounty FOIL officer.[FN2]The Essex County Attorney denied petitioner's request, and petitioner thereafter appealed torespondent William B. Ferebee, the Chairperson of the Essex County Board of Supervisors. InMarch 2016, Ferebee denied the appeal, concluding that Election Law § 3-222 (2)specifically exempted the requested materials from disclosure.
Petitioner commenced this CPLR article 78 proceeding in June 2016 seeking, among otherthings, to annul Ferebee's determination and to obtain the requested materials pursuant to FOIL.Whitney submitted an affidavit in support of the petition, and McGahay and Ferebee separatelyjoined issue. Supreme Court, in a well-reasoned and thorough decision, determined that therequested documents were not specifically exempt from disclosure under Election Law§ 3-222 and ordered release of the electronic ballot images and cast vote recordsfrom the election. McGahay and Ferebee now appeal.
Initially, we find no merit in McGahay's contention that the proceeding was untimelycommenced. Petitioner did not seek relief under either article 8 or article 16 of the Election Law,therefore the limitations periods contained therein are inapplicable. Instead, the proceeding wastimely commenced within four months of Ferebee's March 2016 determination (seeCPLR 217 [1]; Matter of Garcia v Division of State Police, 302 AD2d 755, 756[2003]).
Turning to the heart of the dispute, agency records are presumptively available for inspectionand copying under FOIL "in accordance with the underlying 'premise that the public is [*3]vested with an inherent right to know and that official secrecy isanathematic to our form of government' " (Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 73[2017], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]; see Matter of Data Tree, LLC vRomaine, 9 NY3d 454, 462 [2007]). As relevant here, the agency bears the burden ofdemonstrating that the requested records are specifically exempted from disclosure (seeMatter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; see also Matter of Friedman v Rice, 30NY3d 461, 475 [2017]). Under this framework, FOIL is to be "liberally construed and itsexemptions narrowly interpreted so that the public is granted maximum access to the records ofgovernment" (Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492[1994] [internal quotation marks and citations omitted]). While a statute need not expressly statethat it is intended to establish a FOIL exemption, there must be a "clear legislative intent toestablish and preserve . . . confidentiality" (Matter of Capital Newspapers Div.of Hearst Corp. v Burns, 67 NY2d at 567; see Matter of M. Farbman & Sons v NewYork City Health & Hosps. Corp., 62 NY2d 75, 81 [1984]).
We begin our analysis with the premise that there are two implied, yet limited, FOILexemptions encompassed within Election Law § 3-222 (1) and (2), neither of whichshield the requested records from full public disclosure.[FN3] As relevant here, Election Law§ 3-222 (1) states: "Except as hereinafter provided, removable memorycards or other similar electronic media shall remain sealed against reuse until such time as theinformation stored on such media has been preserved in a manner consistent with proceduresdeveloped and distributed by the state board of elections" (emphasis added). Although thislanguage does not address public access to the unpreserved information stored on portableelectronic media, such as a flash drive, accessibility is addressed in the very next sentence, whichstates, as relevant here, "[p]rovided, however, that the information stored on suchelectronic media and all the data and figures therein may be examined upon the order of anycourt" (Election Law § 3-222 [1] [emphasis added]).[FN4] We interpret "[p]rovided, however," followingthe language "[e]xcept as hereinafter provided," to mean that the requirement of obtaining a courtorder to inspect information contained on such electronic media applies only prior topreservation, creating a limited implied FOIL exemption during the pre-preservation period.Given that we must construe FOIL exemptions narrowly (see Matter of Madeiros v New YorkState Educ. Dept., 30 NY3d at 73; Matter of Data Tree, LLC v Romaine, 9 NY3d at462), it follows that, absent an additional exemption relating to post-preservation data, ElectionLaw § 3-222 (1) does not restrict access to information stored on electronicmedia—such as the electronic ballot images at issue—once the preservation processis complete and the information has been permanently stored. Accordingly, copies of thesepermanently stored electronic ballot images, which fall squarely within the definition of agencyrecords under the Public Officers Law (see Public Officers Law § 86 [3],[4]), may be accessed through normal FOIL procedures after the images have been preserved,even absent a court order.
We reject the proposition that Election Law § 3-222 (2) governs this dispute.This [*4]subdivision provides, as relevant here, that "[v]otedballots shall be preserved for two years after such election and the packages thereof may beopened and the contents examined only upon order of a court or judge of competent jurisdiction"(Election Law § 3-222 [2]). While this subdivision contains an implied FOILexemption by limiting the circumstances, scope and manner in which voted ballots may beinspected within the two-year period, we read this subdivision as creating a two-year preservationrequirement that applies solely to paper ballots. This interpretation comports with the spirit ofFOIL and rationally tracks the statutory language referring to "packages" of voted ballots,indicating that the subdivision applies solely to ballots in paper form. Unlike paper ballots, whichare manually stored in packages that must be physically opened for inspection and are susceptibleto tampering, no such concern is implicated when electronic ballot images have beenpermanently preserved on a hard drive. That the Legislature carved out different preservationtime frames in Election Law § 3-222 (1) and (2) demonstrates an awareness that thepreservation procedures differ based upon whether such data is contained in electronic or paperform.[FN5]
Moreover, Election Law § 3-222 does not evince a legislative intent, nor isthere any legitimate reason, to protect the confidentiality of anonymous voted ballots. Rather, thestatute establishes preservation requirements to maintain the integrity of voted ballots during theelection certification process. Indeed, Election Law § 3-222 is titled"[p]reservation of ballots and records of voting machines" (emphasis added), and the factthat a party may examine the paper ballots by obtaining a court order within the two-yearpreservation period demonstrates that the Legislature was not concerned with confidentiality. Therestrictions contained in the statute merely dictate how and when voted ballots may be accessedand do not operate as blanket FOIL exemptions.
The dissent's conclusion that Election Law § 3-222 permits the inspection ofvoted ballots only in cases of election disputes or in the prosecution of crimes related to anelection ignores the fact that examination of the original paper ballots was never sought, and thestandard espoused by the dissent, right or wrong, is simply not before us. Moreover, access underFOIL "does not depend on the purpose for which the records are sought" (Matter of Gould vNew York City Police Dept., 89 NY2d 267, 274 [1996]). Inasmuch as the statute does notevince a legislative intent to preserve confidentiality, and because Election Law§ 3-222 (2) does not govern the dispute, the electronic ballot images arepresumptively accessible under normal FOIL procedures after the preservation process set forthin Election Law § 3-222 (1) is complete. Accordingly, the agency failed to meet itsburden of proving that the requested materials are exempt from disclosure under FOIL.
McCarthy, J.P., concurs.
Aarons, J. (concurring). I agree that copies of the electronic ballot images from theNovember 2015 general election in Essex County must be disclosed to petitioner. However, Iwould affirm the judgment for different reasons than those stated by the majority and, therefore, Irespectfully concur.
Inasmuch as petitioner is seeking copies of agency records, this case is controlled by theFreedom of Information Law (see Public Officers Law art 6 [hereinafterFOIL])—a point not contested by the parties. Under FOIL, the public is provided with"broad access to the records of government and an agency must make available for publicinspection and copying all records unless it can claim a specific exemption to disclosure" (Matter of Friedman v Rice, 30 NY3d461, 475 [2017] [internal quotation marks, brackets and citation omitted]; see Matter of Hearst Corp. v New YorkState Police, 132 AD3d 1128, 1129 [2015]). In denying petitioner's FOIL appeal,respondent William B. Ferebee, the Chairperson of the Essex County Board of Supervisors at thetime, stated that Election Law § 3-222 exempted the requested information fromdisclosure and that the requested materials could not be produced without a court order.
In my view, Election Law § 3-222 does not create a FOIL exemption given thatit does not concern the confidentiality of voted ballots. Rather, this statute concerns thepreservation of them. By setting forth specific time and disclosure restrictions and requiring aparty to obtain a court order in certain situations, the statute seeks to protect the integrity of thevoted ballots. Moreover, the fact that this statute permits an examination of voted ballots andallows a board of elections to dispose of them after a certain time period indicates a lack of intentby the Legislature to shield voted ballots from the public eye (see Election Law§ 3-222 [2]). As such, Election Law § 3-222 does not specificallyexempt the requested copies of the electronic ballot images from public access.
Although Election Law § 3-222 does not constitute a FOIL exemption, itnonetheless delineates the circumstances in which voted ballots may be accessed and disclosed.As relevant here, Election Law § 3-222 (2) states: "Voted ballots shall be preservedfor two years after such election and the packages thereof may be opened and the contentsexamined only upon order of a court or judge of competent jurisdiction." The majority concludesthat only paper ballots are controlled by Election Law § 3-222 (2) and thatelectronic ballots are separately governed by Election Law § 3-222 (1). In contrast,Ferebee reads Election Law § 3-222 (2) as applying to both electronic and paperballots and, therefore, a court order is necessary to obtain them during the two-year preservationperiod, and that, at most, only an examination of them is permitted.
In my view, it is unnecessary at this juncture to determine whether the Legislature createdseparate and distinct circumstances with respect to the review of electronic ballots and paperballots. In this regard, even if Ferebee was correct in the interpretation of Election Law§ 3-222 (1) and (2), the requirement that a party obtain a court order to access thevoted ballots applies only in the two years following the election when they must be preserved.Indeed, as Ferebee noted when deciding petitioner's FOIL appeal, upon the expiration of thetwo-year preservation period, the requested information could be disclosed without a court order.Because over two years have passed since the November 2015 election, a court order is no longerrequired at this time. It is for these reasons that I believe petitioner is now entitled to disclosureof the requested copies of electronic ballot images.
Rumsey, J. (dissenting). We dissent on the basis that access to the copies of the electronicballot images is governed exclusively by Election Law § 3-222 and, therefore, theyare exempt from disclosure [*5]under the Freedom of InformationLaw (see Public Officers Law art 6 [hereinafter FOIL]). Inasmuch as petitioner did notmake the showing required by Election Law § 3-222 to obtain access to therequested information, we would reverse and dismiss the petition.
Under FOIL, an agency may deny access to records that "are specifically exempted fromdisclosure by state or federal statute" (Public Officers Law § 87 [2] [a]). A statestatute need not expressly state that records are exempt from disclosure under FOIL so long asthat intent is clear (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67NY2d 562, 567 [1986]; Matter of M. Farbman & Sons v New York City Health &Hosps. Corp., 62 NY2d 75, 81 [1984]; Matter of Wm. J. Kline & Sons v County ofHamilton, 235 AD2d 44, 46 [1997]). Notably, Election Law § 3-222 provides,as relevant here, that a court order is required to permit examination of the voted ballots or ofelectronic images of those ballots that are temporarily preserved on the removable memory cardsor other similar electronic media, and nothing in Election Law § 3-222 (1) or (2)authorizes public release of voted ballots. Moreover, where, as here, a statute requires that a priorcourt order be obtained to access information, a special proceeding must be commenced to obtainthe court order, and determination of whether to grant the order will be made in accordance withthe standards established by the statute (see e.g. Matter of Diaz v Lukash, 82 NY2d 211,215 [1993]). Notably, in Matter of Diaz—decided 16 years after FOIL was enactedand construing a statutory provision that pre-dates FOIL—the Court of Appeals implicitlyheld that FOIL was inapplicable where, as here, a statute provides more specific standardsgoverning release of information and requires that a prior court order be obtained(id.).
Additionally, the requirement of a court order begs the question of the standards to beapplied by a court when determining whether to issue an order permitting examination of theballots. By setting forth specific time and disclosure restrictions and requiring a party to obtain acourt order in certain situations, Election Law § 3-222 seeks to protect the integrityof the voted ballots and delineates the circumstances in which voted ballots may be disclosed. Inthat regard, Election Law § 3-222 orders preservation of original ballots and permitsexamination thereof only for the purpose of resolving election disputes or as evidence in criminalprosecution of crimes related to an election (see People v McClellan, 191 NY 341,348-351 [1908]; see also Election Law § 16-112; 50 NY Jur 2d, Elections§ 712).[FN*]This conclusion is also apparent from the fact that the statute authorizes examination by acommittee of the Senate or the Assembly only for the purpose of investigating contestedelections of members of the Legislature. Thus, the logical standard to be applied is whether therecords are sought for a legitimate purpose related to an election dispute. Here, even if we wereto consider the request within the context of the pending FOIL proceeding (see e.g. Matter of Pennington v Clark,16 AD3d 1049, 1050 [2005], lv denied 5 NY3d 712 [2005]), the petition must bedismissed because petitioner failed to make any showing of entitlement to examine the copies ofthe voted ballots by not specifying that access was being sought for a permissible purpose.
We disagree with the majority's conclusion that the requirement that a court order be [*6]obtained to view electronic images of the voted ballots, imposed byElection Law § 3-222 (1), automatically ceases when the data is merely copied fromthe temporary storage devices. Preservation and examination of the information contained ontemporary storage devices, i.e., images of the voted ballots, are governed by subdivision (1) ofElection Law § 3-222, and preservation and examination of the voted ballots aregoverned by subdivision (2) of that statute. The subdivisions logically contain identicalprovisions limiting examination of the relevant information or ballots, as relevant here, only bycourt order. Therefore, it is our view that following preservation, access to such images isgoverned by subdivision (2) because the preserved images are merely electronic copies of thevoted ballots. The conclusion that a party may have access to electronic images of the votedballots without a court order when a court order is required to view the actual paper ballots is anillogical interpretation of the statute that should be avoided (see Matter of Long v AdirondackPark Agency, 76 NY2d 416, 420, 422-423 [1990]). To illustrate, it is likely that the data thatis initially contained on the temporary storage devices is often permanently preserved shortlyafter the election. Under the majority's view, a party would have nearly immediate access toelectronic images of the voted ballots long before expiration of the two-year period during whicha court order is unquestionably required to obtain access to the actual voted ballots. Finally,inasmuch as the proceeding was commenced, and the order was entered, within the two-yearpreservation period, we would not address disclosure of the records following expiration of thattime period. For the foregoing reasons, we would reverse and dismiss the petition.
Devine, J., concurs. Ordered that the judgment is affirmed, without costs. [Prior CaseHistory: 56 Misc 3d 354.]
Footnote 1:There is nothing in the recordindicating that these procedures were not followed in this case.
Footnote 2:Although petitioner's request wasnot formally denominated a FOIL request, it was treated as such by the Essex County Attorney.
Footnote 3:In conducting our analysis, wealso note that the record contains an advisory opinion from the Committee on Open Governmentthat concludes that electronic ballot images are accessible under FOIL and are not specificallyexempt under Election Law § 3-222 (see Comm on Open GovtFOIL-AO-19107 [2014]).
Footnote 4:This information also "may beexamined at the direction of a committee of the senate or assembly" (Election Law§ 3-222 [1]).
Footnote 5:The dissent's assertion that it isillogical to allow FOIL access to electronic images of voted ballots when a court order is requiredto view the paper ballots fails to account for important distinctions between unpreserved andpreserved records. This assertion does not reflect our position that prior to preservation, a courtorder is necessary to inspect both paper ballots and electronic images thereof, but, afterpreservation, FOIL controls the analysis.
Footnote *:People v McClellan(supra) remains instructive even though it predates the enactment of FOIL in 1977. It hasnot been abrogated by the Court of Appeals or by the Legislature. Neither the original statute norany of the subsequent six amendments specifically contravenes McClellan or containsany provisions that otherwise indicate any intent to ease or expand access to voted ballots.