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FOIL-AO-14406

December 15, 2003

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

I have received your letter of November 18 and related materials pertaining to your request to the East Meadow Fire District to inspect and/or copy "the voter history from [the] district’s most recent bond referendum." When referring to "voter history", you indicated that the request is intended to include the names and home addresses of all voters who participated in the bond referendum.

In response to the request, the Chairman of the Board of Fire Commissioners denied access on the ground that disclosure would result in "an unwarranted invasion of personal privacy" pursuant to §89(2)(b)(iii) of the Freedom of Information Law. He also made reference to an amendment to the Education Law, Chapter 29 of the Laws of 2000, and supported his conclusion by indicating that the amendment "eliminated the requirement that a list of absentee voters be posted at the election site in order to enable persons to challenge them."

From my perspective, it is clear that your request should have been granted. In this regard, I offer the following comments.

First, §175 of the Town Law, which pertains to fire districts, states in subdivision (2) that "Every elector of the town who shall be a registered voter and shall have resided in the district for the period of thirty days next preceding any election at which a proposition shall be submitted, shall be qualified to vote upon such proposition." Section 175-a of the Town Law entitled "Registration for voters" makes reference to a "register" and directs inspectors of elections to "adopt, use or copy from, the registration list certified and supplied by the county board of elections the names appearing thereon of all persons residing in the fire district and qualified to vote in such forthcoming...election..."

Second, the provision in the Freedom of Information Law to which the Chairman alluded is, in my view, inapplicable. Section 89(6) of that statute states that:

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

As such, if records are available as a right under a different provision of law or by means of judicial determination, nothing in the Freedom of Information Law can serve to diminish rights of access [see e.g., Szikszay v. Buelow, 436 NYS 2d 558, 583 (1981)].

Relevant in this instance is §5-602 of the Election Law, entitled "Lists of registered voters; publication of", which states that voter registration lists are public. Specifically, subdivision (1) of that statute provides in part that a "board of elections shall cause to be published a complete list of names and residence addresses of the registered voters for each election district over which the board has jurisdiction"; subdivision (2) states that "The board of elections shall cause a list to be published for each election district over which it has jurisdiction"; subdivision (3) requires that at least fifty copies of such lists shall be prepared, that at least five copies be kept "for public inspection at each main office or branch of the board", and that "other copies shall be sold at a charge not exceeding the cost of publication." As such, §5-602 of the Election Law directs that lists of registered voters be prepared, made available for inspection, and that copies shall be sold. There is no language in that statute that imposes restrictions upon access in conjunction with the purpose for which a list is sought or its intended use.

Since §5-602 of the Election Law confers unrestricted public rights of access to voter registration lists, in my opinion, nothing in the Freedom of Information Law could be cited to restrict those rights. Further, as a general matter, I believe that a statute pertaining to a specific subject prevails over a statute pertaining to a general subject. A statute in the Election Law that pertains to particular records would in my view supersede a statute pertaining to records generally, such as the Freedom of Information Law.

Additionally, in a provision 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 include voters’ residence addresses.

Based on the foregoing, it is clear that voter registration lists identifying those who voted by name and address, as well as the names and addresses of applicants for absentee ballots must be made available, and that the same or equivalent records maintained by a fire district are, in my opinion, equally accessible.

Lastly, the inference in the Chairman’s letter suggesting that the names and addresses of applicants for absentee ballots are exempt from disclosure, if that is his contention, is inconsistent with law. Perhaps a list of those who sought absentee ballots need not be posted by a school district. However, the actual language of the provision of law to which he alluded specifies that it is accessible to the public. Specifically, §2018-b(7) of the Education Law states in relevant part that:

"The clerk of the school district or designee of the trustees or school board shall make a list of all persons to whom absentee voter’s ballots shall have been issued and maintain such a list where it shall be available for public inspection...."

Moreover, §175-b of the Town Law, entitled "Absentee ballots for fire district elections; special provisions", contains similar language in subdivision (6), stating that:

"The secretary of the fire district shall make a list of all persons to whom absentee voter’s ballots shall have been issued and keep a list on file in the fire office where it shall be available for public inspection...."

That provision also states that the list must be posted during the election in a "conspicuous place or places."

In sum, at suggested at the outset, it is clear in my opinion that records indicating the names and addresses of those who voted during fire district elections, including a bond referendum, must be disclosed. In an effort to enhance compliance with and understanding of applicable law, a copy of this opinion will be sent to the Chairman.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: William Neill