February 21, 2014
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuring staff advisory opinion is based solely upon the information presented in your correspondence.
I have received your letter in which you requested an advisory opinion concerning “the public’s right to access the electronic records of ballot images in the custody of county boards of elections.”
By way of background, you wrote that voters in New York since 2009 have “been casting paper ballots that are inserted at the poll site into ballot scanning devices”, and the State Board of Elections, which you serve as Co-Chair, has certified two systems to enable voters to do so. You explained that when a ballot is inserted into the scanner, the machine scans the ballot when it has been validly cast and records, interprets and counts the ballot and stores the images and “cast vote records” on two flash drives, one of which is the “official” record, and the other a “redundant backup.” Because they are stored in “randomized fashion”, it is “impossible to associate any particular ballot image and its associated cast vote record with the order in which the ballots were scanned”, thereby “preserving the secrecy of the ballot.” When the polls close, the system prints out a “tabulated results tape”, which is the official record of votes cast through use of a particular machine. One of the flash drives, a portable memory device, is removed and returned to the county board of elections; the other remains in the machine and is used in the recanvass process. The contents of the portable memory devices “may be copied into permanent electronic storage media” by county boards, and thereafter erased and reformatted for use in an ensuing election.
It is your view that the “electronic ballot images and cast vote records created by the ballot scanners used to conduct our elections” are accessible to the public pursuant to the Election Law, and that nothing in the Election Law or the Freedom of Information Law (FOIL) serves to enable a county board of elections to deny access to those records. I concur with your contention, and in this regard, I offer the following comments.
First, FOIL is expansive in scope, for it pertains to all government agency records. Section 86(4) of that statute defines the term “record” to include “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever…” Consequently, information maintained in some physical form by an agency, whether on paper or electronically, constitutes a “record” that falls within the coverage of FOIL. It is clear, therefore, that the electronic records of ballot images in the custody of county boards of elections are “records” subject to rights of access.
Second, as a general matter, FOIL is based on a presumption of access. Stated differently, all agency records are accessible to the public, except to the extent that one or more exceptions to rights of access listed in §87(2) of that statute may properly be asserted. From my perspective, none of the exceptions authorize a board of elections to deny access to the records at issue, subject to the direction provided in the Election Law.
Third, bolstering this contention, as you pointed out, is §3-222 of the Election Law, entitled “Preservation of ballots and records of voting machines”. Subdivision (1) of that statute pertains to the records that are the subject of your request for an opinion, the electronic images of ballots cast, which is clearly distinguishable from subdivision (2) concerning “voted ballots”, those that exist on paper and which are not maintained by means of electronic media.
Subdivision (1) of §3-222 states in relevant part that:
“Except as hereinafter provided, removable memory cards or other similar electronic media shall remain sealed against reuse until such time as the information stored on such media has been preserved in a manner consistent with procedures developed and distributed by the state board of elections. Provided, however, that the information stored on such electronic media and the data and figures therein may be examined upon the order of any court or judge of competent jurisdiction…”
I note that this office has received a copy of a response to a request for the “electronic image file of all machine tabulated or scanned ballots” used in a recent town election in Putnam County, and that the County denied access on the basis of §87(2)(a) of FOIL in conjunction with §3-222 of the Election Law. Section 87(2)(a), the first ground for denial, pertains to records that “are specifically exempted from disclosure by state or federal statute”. As indicated above, there is nothing in the language of subdivision (1) of §3-222 specifying that electronic images of ballots cast are confidential or “exempted from disclosure.”
Both the 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)].
In like manner, in construing the equivalent exception to rights of access in the federal FOI Act, it has been found that:
“Exemption 3 excludes from its coverage only matters that are:
Specifically exempted from disclosure by statute (other than §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 specifically exemptS 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 states 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 Pressv. 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].
In short, to be “exempted from disclosure by statute,” both state and federal courts have determined that a statute must leave no discretion to an agency: it must withhold such records.
While §3-222(1) requires that electronic images “remain sealed against reuse” for a time, after they have been preserved, in my view, the sealing requirement ends. Moreover, as you indicated in your letter addressed to me, the last sentence of subdivision (3) of §3-222 states that, unless otherwise ordered by a court:
“…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.”
Based on the foregoing, because they may be “sold”, it is clear that he electronic images of ballots cannot be characterized as confidential or exempt from disclosure pursuant to either §87(2)(a) of FOIL or subdivision (1) of §3-222 of the Election Law.
In contrast, subdivision (2) of §3-222 concerning paper ballots states in relevant part that:
“Voted 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…” (emphasis added).
The key word that distinguishes rights of access to the records described in subdivisions (1) and (2) is “only” as it appears in the latter. That term of limitation clearly prohibits disclosure of paper ballots unless a court orders disclosure. That being so, I believe that those paper ballots are indeed “specifically exempted from disclosure by statute”, for they cannot be disclosed, except under specified circumstances.
In sum, based on the preceding analysis, I agree with your contention that “the electronic ballot images and cast vote records created by the ballot scanners used to conduct our elections” are accessible to the public pursuant to FOIL and in accordance with subdivisions (1) and (3) of the Election Law.
I hope that I have been of assistance. If you would like to discuss the matter further, please feel free to contact me.
Robert J. Freeman
cc: James A Walsh
Gregory T. Paterson
Todd D. Valentine
Robert a. Brehm