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September 24, 1997

Mr. Wallace S. Nolen
94-A-6723
Sullivan Correctional Facility
P.O. Box A6
Fallsburgh, NY 12733-0116

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Nolen:

I have received your letter of August 20 in which you referred to an opinion addressed to you
on August 12 concerning voter registration records. You suggested that my response was unclear,
for it did not refer to the kinds of information within those records that might be redacted, such as
residence addresses, dates of birth, party designations and similar information.

From my perspective, it is likely that the records in question must be disclosed in their
entirety.

First, as indicated in the earlier opinion, §3-220(1) of the Election Law states in part that: "All
registration records, certificates, lists and inventories referred to in, or required by, this chapter shall
be public records..." Additionally, §5-210 of the Election Law, entitled "Registration and enrollment
and change of enrollment upon application", includes reference to voter application forms and
provides in paragraph (k) of subdivision (5) that the form must include:

"(i) A space for the applicant to indicate whether or not he has
ever voted or registered to vote before and, if so, the approximate
year in which he last voted or registered and his name and address at
the time."

"(ii) The name and residence address of the applicant including the
zip code and apartment number, if any."

"(iii) the date of birth of the applicant."

"(iv) A space for the applicant to indicate whether or not he is a
citizen of the United States. "

"(v) the gender of the applicant (optional)."

"(vi) A space for the applicant to indicate his choice of party
enrollment, with a clear alternative provided for the applicant to
decline to affiliate with a party."

"(vii) the telephone number of the applicant (optional).

"(viii) A place for the applicant to execute the form on a line which
is clearly labeled ‘signature of applicant'..."

Second, as you are aware, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the
Law.

One of the grounds for denial involves the capacity to withhold records of portions thereof
when disclosure would result in "an unwarranted invasion of personal privacy" [see §87 (2)(b)]. In
my opinion, if only the Freedom of Information Law applied to the records in question, many of the
items referenced in the provision quoted above could be redacted on the ground that disclosure would
constitute an unwarranted invasion of personal privacy. However, §89(6) of the Freedom of
Information Law provides that:

"Nothing in this article shall be construed to limit or abridge any
otherwise right of access at law or in equity of any party to records."

Under the circumstances, since the Election Law requires the disclosure of registration records,
which include the items referenced above, nothing in the Freedom of Information Law may be
asserted to withhold those records. Therefore, although certain of those items might justifiably be
denied as an unwarranted invasion of personal privacy if contained in other kinds of records, the
specific direction provided in the Election Law in my opinion requires disclosure of registration
records, including those items.

I note that §6212.5 of the regulations promulgated by the State Board of Elections provides
in part that, when disclosing, a county board of elections must ensure that the disclosures "do not
include facsimile voter signatures or the capability to generate facsimile voter signatures, but do
include all other data contained in those records."

Lastly, you wrote that the Orange County Attorney has contended that since you did not
request a certification pursuant to §89(3) of the Freedom of Information Law at the time of your
initial request, you cannot seek the certification at time of your appeal. In this regard, since a
certification merely indicates that copies of records made available are true copies, I cannot envision
why an agency would not, after making copies of records available, offer a statement, i.e., a
certification, to the effect that the records that had previously been disclosed were true copies of the
agency's records.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Richard B. Golden, County Attorney