July 10, 2002
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.
I have received your letters, which are respectively dated June 6 and June 18. In the former, Mr. Gross indicated that the Mohawk Central School District sought an opinion concerning rights of access to information contained on absentee ballot applications. Mr. Monohan, as President of the Board of Education, expressed concern that if the portion of the application identifying an absentee voter is disclosed with the remainder deleted in response to a request for the names, and a second request involves the remainder of the application with the names deleted, there may be nothing to "prevent one person from 'foiling' one part one day and the other part the next day."
In my view, there is a means of dealing with the problem without infringing on personal privacy in the manner described by Mr. Monohan. In this regard, I offer the following comments.
First, §2018-b of the Education Law pertains to the use of absentee ballots in school district elections and describes the contents of an absentee ballot application. Subdivision (2) of that statute requires that an applicant include his or her name and address, that he or she is or will be a qualified voter on the day of a school district election, and that he or she will be unable to vote on the day of the election. That provision also requires an indication of the reason for one's inability to be present on the day of the election. The permissible reasons are limited to situations involving illness or physical disability, a business commitment, vacation or being detained in jail.
Subdivision (7) of §2018-b states in relevant part that the school district clerk or designee of the board of education "shall make a list of all persons to whom absentee voter's ballots shall have been issued and maintain such list where it shall be made available for public inspection..." Consequently, there is requirement that a list be prepared identifying those to whom absentee ballots have been issued that is separate from the applications themselves.
Second, 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. From my perspective two of the grounds for denial are pertinent to an analysis of rights of access.
As suggested by both of you, relevant are §§87(2)(b) and 89(2)(b), both of which provide, in brief, that an agency, such as a school district, may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." The latter includes a series of examples of unwarranted invasions of personal privacy. As indicated and required by the Education Law, that a person has been issued an absentee ballot is public. However, in my view, the reason for a person's absence on the day of an election is nobody's business and would, if disclosed, result in an unwarranted invasion of personal privacy. That a person is scheduled to be in a hospital, for instance, indicates that he or she has a medical problem. While that kind of information is not a medical record per se, the Court of Appeals has found that since it involves personal medical information and is an intimate detail of one's life, disclosure would result in an unwarranted invasion of personal privacy. Although the Court did not define or specify the parameters of what may constitute an unwarranted invasion of personal privacy, it offered guidance, stating that the purpose of the exception is to enable government agencies to withhold those portions of records that a reasonable person of ordinary sensibilities would regard as intimate, private information [Hanig v. State Department of Motor Vehicles, 79 NY2d 106 (1992)].
In short, I believe that a person's name, coupled with the reason for his or her absence on the day of an election, would constitute an unwarranted invasion of privacy.
The other exception of significance, §87(2)(f), authorizes an agency to withhold records insofar as disclosure would "endanger the life or safety of any person." In a situation in which it known that a person is away on business or vacation, it is possible that an unscrupulous recipient of that information could use the information to commit crimes, such as burglary, thereby jeopardizing the lives and/or safety of other residents or neighbors, for example.
If a person seeking the applications is interested in knowing whether the reasons for seeking absentee ballots are consistent with law, the names and other identifying details may in my opinion be deleted from applications to protect the privacy of the applicants. To prevent a person from obtaining separate portions of an application, thereby enabling the recipient to compare handwriting, it is suggested that a request for the names of those to whom absentee ballots were issued be granted by disclosing the list required to be maintained pursuant to §2018-b of the Education Law and that the portions of the applications that include names and addresses be deleted in every instance. By disclosing the list, the public can know the identities of those to whom absentee ballots were issued. By deleting names and addresses from the applications prior to the disclosure of the remainder of those records, the public can know whether the District validly issued absentee ballots. Making disclosures of those separate records as described would preclude a recipient of the records from comparing one portion of the application with another through an applicant's handwriting, but at the same time enhance the accountability of the District and protect individuals' privacy and safety.
I hope that I have been of assistance.
Robert J. Freeman