August 14, 2009
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, unless otherwise indicated.
As you are aware, I have received your letter and the materials attached to it. You have sought a “determination” concerning your right to copy or to obtain a copy of a “voter list (not voter roll) for a water district referendum vote 4/7/2009" in the Town of Alden.
The Town Attorney sustained the initial denial of your request based on a contention that the record in question is “specifically exempted from disclosure by state or federal statute”, citing §87(2)(a) of the Freedom of Information Law as it relates to §3-220 of the Election Law. That provision states in relevant part that “All registration records, certificates, lists, and inventories referred to in, or required by, this chapter shall be public records and open to public inspection under the immediate supervision of the board of elections or its employees...” The Town Attorney cited a decision by the Appellate Division in which the court, on the basis of §3-220, determined that copies of records within the coverage of that statute “may not be publicly disseminated, but are subject only to public inspection” [Waldman v. Village of Kiryas Joel, 31 AD3d 569 (2006)].
It is your contention that the “town attorney has the voter list and voter roll mixed up”, and that the record of your interest is available for inspection and copying pursuant to §5-602 of the Election Law, which specifies that a board of elections must make a certain number of copies of voter registration lists available and may sell copies at a charge not exceeding the cost of publication.
In this regard, I offer the following comments.
First, since you requested a “determination”, I point out that the Committee is authorized to prepare advisory opinions and has no authority to render a binding decision.
Second, with all due respect to the Appellate Division, its decision in Waldman is inconsistent with the direction offered by the Court of Appeals, the state’s highest court, as well as federal court decisions involving the same issue of interpretation. Based on those decisions, in considering whether records are “specifically exempted from disclosure by state or federal statute”, I believe that the only situations in which an agency cannot disclose would involve those instances in which a statute other than the Freedom of Information Law prohibits disclosure. The same principle would be applicable under the federal Freedom of Information Act (5 USC §552). While a federal agency may withhold records in accordance with the grounds for denial, it has discretionary authority to disclose.
Both the New York Court of Appeals and federal courts in construing access statutes have determined that the characterization of records as “confidential” or “exempted from disclosure by statute” must be based on statutory language that specifically confers or requires confidentiality. As stated by the Court of Appeals:
“Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting disclosure claims as protection” [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].
Similarly, in construing the “(b)(3)” exception to rights of access in the federal Act, it has been found that:
“Exemption 3 excludes from its coverage only matters that are:
specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
“5 U.S.C. § 552(b)(3) (1982) (emphasis added). Records sought to be withheld under authority of another statute thus escape the release requirements of FOIA if – and only if – that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. The Supreme Court has equated ‘specifically’ with ‘explicitly.’ Baldridge v. Shapiro, 455 U.S. 345, 355, 102 S. Ct. 1103, 1109, 71 L.Ed.2d 199 (1982). ‘[O]nly explicitly non-disclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption.’ Irons & Sears v. Dann, 606 F.2d 1215, 1220 (D.C.Cir.1979) (emphasis added). In other words, a statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure”[Reporters Committee for Freedom of the Press v. U.S. Department of Justice, 816 F.2d 730, 735 (1987); modified on other grounds,831 F.2d 1184 (1987); reversed on other grounds, 489 U.S. 789 (1989); see also British Airports Authority v. C.A.B., D.C.D.C.1982, 531 F. Supp. 408; Inglesias v. Central Intelligence Agency, D.C.D.C.1981, 525 F.Supp, 547; Hunt v. Commodity Futures Trading Commission, D.C.D.C.1979, 484 F.Supp. 47; Florida Medical Ass’n, Inc. v. Department of Health, Ed. & Welfare, D.C.Fla.1979, 479 F.Supp. 1291].
While §3-220 of the Election Law appears to restrict the right to gain access to the ability to inspect, as opposed to granting a right to inspect and copy, it clearly indicates that the records subject to that statute are accessible to the public; there is nothing in that statute that suggests that the records are confidential or that they cannot be disclosed or “publicly disseminated.” That being so, I do not believe that the holding of the Appellate Division in Waldman would be sustained by the Court of Appeals.
Third, it appears to be your contention that the records at issue are available for inspection and copying pursuant to §5-602 of the Election Law, which pertains to lists of registered voters and states in subdivision (3) that copies of those lists are available for inspection and copying. Interestingly, in a case decided in 1984 by Erie County Supreme Court, one of the issues involved the fee for a copy of the county’s voter registration list. The right to have a copy was clear; what needed to be resolved was the amount of the fee for a copy and the obligation of the Board of Elections to accept a cash payment, rather than a bank check or money order (Reese v. Mahoney, Supreme Court, Erie County, June 28, 1984).
Lastly, if the facts as you described them to me by phone are accurate, neither provision of the Election Law reference above would govern rights of access to the record at issue. In our conversation, you indicated that list was prepared solely in relation to a referendum and includes only the names and addresses of those persons who could demonstrate that they are property owners in the Town. You indicated that property ownership was the only criterion for being able to vote, and that even property owners who are not registered voters had the opportunity to vote in the referendum. If that is so, the record in question would not have fallen within the scope of the cited statutes in the Election Law, and rights of access would be governed by the Freedom of Information Law.
As you may be 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 (j) of the Law.
Assuming that the Freedom of Information Law is governing statute regarding disclosure, there would be only one circumstance in which the record in question could be withheld. Section 87(2)(b) authorizes an agency to withhold records insofar as disclosure would constitute an “unwarranted invasion of personal privacy.” In addition, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy, one of which involves the “sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes.” Unless you would use the list for solicitation or fund-raising, or make it available for such use to another person, I believe that the list that you requested must be disclosed.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board
Jennifer L. Strong, Town Attorney