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May 6, 1999

 

Mr. Bart Lucido
36A North Perkins Avenue
Elmsford, NY 10523

Ms. Ellen Zimkin
7 Elmwood Avenue
Elmsford, NY 10523

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. Lucido and Ms. Zimkin:

I have received correspondence from both of you pertaining to requests for records
relating to an election in the Village of Elmsford. In brief, you have sought an advisory
opinion concerning rights of access to "absentee ballots, absentee ballot requests and copies
of signed envelopes."

In this regard, it is noted at the outset that the Freedom of Information Law deals
generally with rights of access to government records. In some instances, other statutes deal
with particular records and include specific direction concerning disclosure or perhaps the
ability to withhold those records. In those latter cases, the statute providing specific direction
with respect to the disclosure of particular records prevails over the Freedom of Information
Law.

The Freedom of Information Law, in brief, 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.

As I understand the Election Law, absentee ballots and ballot envelopes are beyond
the coverage of the Freedom of Information Law and may be examined only pursuant to court
order. Relevant with regard to those records are §87(2)(a) of the Freedom of Information
Law and §3-222(3) of the Election Law. The former pertains to records that are "specifically
exempted from disclosure by state or federal statute." The latter is such a statute, for it and
provides in relevant part that:

"Except as hereinafter provided, packages of protested, void
and wholly blank ballots, packages of unused ballots and all
absentee and military, special federal, special presidential and
emergency ballots and ballot envelopes, if any, opened or
unopened, shall be preserved for two years after the election.
Except as hereinafter provided, boxes contained voted paper
ballots shall be preserved inviolate for four months after the
election, or until one month before the next election occurring
within five months after a preceding election if such boxes are
needed for use at such next election and if the officer or board
in charge of such voted paper ballots is required by law to
furnish ballot boxes therefor. Provided, however, that such
ballot boxes and such packages may be opened, and their
contents and the absentee and military, special federal, special
presidential and emergency ballots and ballot envelopes may be
examined, upon the order of any court or justice of competent
jurisdiction" (emphasis added).

Based on the foregoing, absentee ballots and ballot envelopes must be "preserved inviolate",
unless a court order is issued authorizing their examination.

There are many instances in which home addresses may be withheld under §87(2)(b)
of the Freedom of Information Law, which permits an agency to deny access to records to
the extent that disclosure would constitute "an unwarranted invasion of personal privacy."
Nevertheless, in a statute dealing with absentee ballot applications, Election Law, §8-402,
subdivision (7) states that:

"The board shall keep a record of applications for absentee
ballots as they are received, showing the names and residences
of the applicants, and their party enrollment in the case of
primary elections, and, as soon as practicable shall, when
requested, give to the chairman of each political party or
independent body in the county, and shall make available for
inspection to any qualified voter upon request, a complete list
of all applicants to whom absentee voters' ballots have been
delivered or mailed, containing their names and places of
residence as they appear on the registration record, including
the election district and ward, if any..."

Similarly, §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..." Registration records including voters' residence addresses.

Based on the foregoing, it is clear in my view that the names and address of applicants
for absentee ballots and voter registration lists identifying those who voted should be readily
available. I recognize that the provisions referenced above involve county boards of elections.
However, I am unaware of any provision of the Election Law, Article 15, which pertains to
villages elections, that would provide direction to the contrary.
With respect to the content of the applications, I believe that the Freedom of
Information Law would govern in determining rights of access. As indicated in a
memorandum addressed to Mayor DeAngelis on April 19, portions of those documents might
justifiably be withheld. For example, if the applicant includes reference to a medical condition
or disability, that portion of the record could in my opinion clearly be withheld as an
unwarranted invasion of personal privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Arthur J. DeAngelis, Mayor