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August 5, 1999

Ms. Marjorie C. Gilligan
Crawson Road
P.O. Box 195
Long Eddy, NY 12760

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 Ms. Gilligan:

I have received your letter of July 30 in which you requested " the list of absentee
voters (and their addresses) who voted at the Delaware Valley Central School, Callicoon,
New York on June 10, 1999." You indicated that you were able to obtain a list of those who
applied for absentee ballots, "but not the list of those who actually voted." Further, you were
informed that such a list is "sealed."

In this regard, first, the Committee on Open Government is authorized to provide
advice and opinions concerning public access to government records, primarily under that
state's Freedom of Information Law. The Committee does not have custody or control of
records generally, and it is not empowered to compel an agency to grant or deny access to
records. In short, I cannot make the records available because this office does not possess
them.

Second, requests for records should generally be made to the "records access officer"
at the agency that you believe maintains the records of your interest. The records access
officer, pursuant to regulations promulgated by the Committee on Open Government (21
NYCRR Part 1401), has the duty of coordinating an agency's response to requests.

And third, in brief, 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.

Relevant in the context of your inquiry is §87 (2)(a), which pertains to records that
"are specifically exempted from disclosure by state or federal statute. One such statute is
§2610 of the Education Law. Subdivision (3) of §2610 states in relevant part that:

"After the ballots are counted and the statements have been
made as required herein the ballots shall be replaced in the
ballot box. Each box shall be securely locked and sealed and
deposited by an inspector designated for the purpose with the
clerk of the board of education."

While I am not an expert on the Education Law, I believe that the ballots remain
sealed, unless there is an order to the contrary issued by the Commissioner of Education or
a court.

I hope that the foregoing serves to clarify your understanding of the matter and that
I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Suzanne Spears
RAO, Delaware Valley Central School