From: Jobin-Davis, Camille (DOS)
Sent: Monday, October 05, 2009 12:19 PM
Subject: Freedom of Information Law - ballots
As I suspected, please note the following provision of Election Law, set forth in its entirety:
§ 3-222. Preservation of ballots and records of voting machines
1. Except as hereinafter provided, voting machines shall remain locked against voting for a period of thirty days or until fifteen days before the next election, if such machines are needed for use at such next election. Provided however that a machine may be unlocked if a discrepancy discovered in the recanvass of voting machines required by this chapter makes it necessary to examine the machine to determine if it has malfunctioned and provided further that a machine may be opened and all the data and figures therein examined upon the order of any court or judge of competent jurisdiction or may be opened by direction of a committee of the senate or assembly to investigate and report upon contested elections of members of the legislature voted for by the use of such machine and such data and such figures examined by such committee in the presence of the officer having the custody of such machine.
2. Write-in ballots shall be preserved for two years after such election and the packages thereof may be opened and the contents examined only upon order of a court or judge of competent jurisdiction, or by direction of such committee of the senate and assembly if the ballots relate to the election under investigation by such committee, and at the expiration of such time, such ballots may be disposed of at the discretion of the officer or board having charge of them.
3. 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 containing 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. Boxes and envelopes containing absentee, military and emergency ballots voted at a general or special election, for the office of member of the senate or assembly, packages of void, protested and wholly blank ballots, unopened absentee and military ballot envelopes and the packages of unused ballots, in connection with such election, also may be opened, and their contents and such envelopes also may be examined, by direction of a committee of the senate or assembly to investigate and report on contested elections of members of the legislature. Unless otherwise ordered or directed by such a court, justice or committee, such boxes shall be opened and their contents and such packages and the envelopes containing voted ballots and ballot envelopes shall be destroyed, at the expiration of the period during which they are required by the provisions of this section to be preserved, except that instead of being destroyed, they may be sold and the proceeds paid over in the manner provided with respect to the sale of books, records and papers pertaining to an election.
4. The results of the annual test of each voting machine of a type approved after September first, nineteen hundred eighty-six, which is required by this chapter, shall be preserved for two years.
5. All records and documents pertaining to ballot label programming and ballot label
programming data for any election for any voting machine of a type approved after September first, nineteen hundred eighty-six and all records pertaining to the testing of any such programming and programming data or the testing of any such machine in connection with any such election shall be preserved for two years after such election.
Based on the above language, only a court can require the inspection or the copying of ballots for four months after an election (or a shorter period when the next election occurs within five months). If your request is made during this time frame, I believe that the agency could deny access to copies of ballots.
It is not so clear what happens after the four months have elapsed. Please let me know if you require further research on this issue.
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231