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FOIL-AO-15812

February 14, 2006

E-MAIL

TO:

FROM: Camille S. Jobin-Davis, Assistant Director

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

Dear Mr. Harmon:

We are in receipt of your January 6, 2006 request for an advisory opinion concerning the application of the Freedom of Information Law to a statewide voter registration list, which is required to be maintained by the State Board of Elections pursuant to recent amendments to the Election Law, effective January 1, 2006.

As a general matter, 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. Nevertheless, §89(6) of the Freedom of Information Law 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 of 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., Kwitny v. McGuire, 53 NY2d 968 (1981); 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."

Since §5-602 of the Election Law confers unrestricted public rights of access to voter registration lists generated for each election district, in our opinion, nothing in the Freedom of Information Law could be cited to restrict those rights. Further, as a general matter, we 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 our view supersede a statute pertaining to records generally, such as the Freedom of Information Law.

As you note, the Election Law was recently amended (L. 2005, Ch. 179). In concert with the Help America Vote Act of 2002 (42 USC 15301; "HAVA"), the amendments establish an individual districts statewide voter registration list for voter identification verification purposes. In an attempt to clarify the impact of the amendments, we contacted the Board of Elections and learned that counties will continue to maintain separate lists, and that the state will create and maintain a registration list separate from those individual lists, using information gathered from counties, the Social Security Administration, and various state agencies.

In relevant part, HAVA provides for access to the statewide voter registration list as follows:

"Any election official in the State, including any local election official, may obtain immediate electronic access to the information contained in the computerized list." [§303(a)(1)(A)(v).]

And in general, HAVA restricts unauthorized access as follows:

"The appropriate State or local official shall provide adequate technological security measures to prevent the unauthorized access to the computerized list established under this section." [§303(a)(3)]

As part of the recent amendments to the state law, §3-103 of the Election Law states in part that:

"The information contained in the statewide voter registration list shall not be used for non-election purposes."

This appears to be in keeping with and stemming from the above-cited provisions of HAVA. Because of the specificity of the language, which refers to the statewide list and not the election district lists referenced to earlier in §5-602 of the Election Law, it also appears that this restriction would apply only to the statewide list currently under construction.

Your inquiry goes to the heart of the question and the amendments, and that is whether the public will continue to have access to the individual district or county lists for any purpose. It is our opinion that access to the individual lists should not change, based upon both the legislative purpose and the specificity of the amendment to the Election Law. Access to the statewide list, however, would not be permitted for non-election purposes.

We hope this clarifies your understanding, and that we have been of assistance.

CSJ:tt