SUPREME COURT STATE OF NEW YORK

COTII{TY OF RENSSELAER

CARMELLA R. MANTELLO,

Petitioner.

-against-

LARRY A. BUGBEE and EDWARD G. McDONOUGH,as COMMISSIONERS OF THE BOARD OF ELECTIONS

OF THE COLINTY OF RENSSELAER, NEW YORK,

NOTICE, OF

PETITION PURSUANTTO ARTICLE 78

OF THE CPLRIndex No.: ZtlLob UqRJI No.:

Respondents.

Upon the Verified Petition of Carmella R. Mantello swom to on April 28,2014, and the exhibits

annexed thereto, Petitioner will petition this Court at the Rensselaer County Courthouse,

Congress and Second Streets, Troy, New York 12180, on the 29th day of May, 2014, for an

Order directing Respondents to make certain records available for Petitioner's inspection and

revlew.

Dated: April 30,2014

Attorney for Petitioner406 Seventh AvenueTroy, NY 12182

(stg) 237-187t

TO: LARRY A. BUGBE,E

EDWARD G. MoDONOUGHCommissioners, Rensselaer County Board of Elections

Ned Pattison Rensselaer County Government Center

1600 Seventh Avenue

Troy, NY 12180

SI{ARON COUCH DeBONIS

SUPREME COURT STATE OF NEW YORKCOI,INTY OF RENSSELAER

CARMELLA R. MANTELLO,

Petitioner,

-against-

LARRY A. BUGBEE and EDWARD G. MoDONOUGH,

as COMMISSIONERS OF THE BOARD Or ELECTIONS

oF TlrE couNTY Or RENSSELAE& NEW YORK,

PETITION PURSUANTTO ARfiCLE 78

OF T}IE CPLRIndexNo.: 'z-Ur'PuQQ

RII No.:

Respondeuts.

CARMELLA R. MANTELLO, by her attortrey, SHARON COUCH DeBONIS, as and for her

Petition hererg alleges as follows:

l. On or about February 24,2014, petitioner herein requested an opportunity to review

certain records required to be mainained by the Board of Elections of the County of Rensselaer,

New York. A copy of that request is annexed hereto and made a part hereof as Exhibit A.

2. On or about March 14,2014, petitioner's request was denied. A copy of that denial is

annexed hereto and made a part hereof as Exhibit B.

3. As the Court cafl see, respondents stated in Exhibit B that they would not oppose a court

order directing them to make the requested records, in the form of paper ballots, available to

petitioner for her review.

4. For atl of the above rsasotrs, petitioner respectfully requests ao Order and Judgment

directing respondents to make all paper ballots, includingvoided ballots, from rhe November 5,

2013 Troy City Council election, available for petitioaer's inspection and review immediately or

in the alternative no later than fifteen business days after senrice of the Order and Judgment, and

to pay petitioner's costs and disbursements in this matter.

Dated: April 7.& 2014I(1 I

SIIARON COUCH DeBONISAttomey for Petitioner406 Seventh AvenueTroy, NY 12182

(sl8) 237-t87r

TO: LARRY A. BUCBEEEDWARD G. McDONOUGHCommissioners, Rensselac County Board of Elections

Ned Pattison Rensselaer County Government Center

1600 Seventh AvenueTroy, hfY 12180

VERIFICATION

STATE OF NEW YORKCOTINTY OF

CARMELLA R. MANTELLO, being duly swom, says:

I am the Petitioner in the within special proceeding, I have read the foregoing Petition and lmow

the contents thereof and the same are t'ue to rny knowledge.

Sworn to before me this S. \+\ daY ofApril ,2014

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February 24,2014

Lawrence Bugbee & Ed McDonough

Rensselaer County Board of Elections

Ned Patterson Government Center

1600 7th Avenue

Troy, New York 12180

Dear Commissioners Bugbee & McDonough:please find the enclosed opinion from Robert Freeman, Executive Director of the New

york State Open Govemment Committee, regarding public access to electronic records ofballot images.

I have been attempting for nearly four months to get access to said election records of

ballot images. The County Board of Elections, I believe, has improperly denied me the

aforementioned records regarding the November 5,2013 Troy City Council election- I am

requesting that the County Board of Elections follow the advisory opinion of Mr. Freeman and

provide me access to the ballot images of November 5,2013 Troy City Council election.

Failure of the Board to provide me this information is in violation of the New York State

Freedom of Information Law, and would raise serious concerns of the actual results of the

November 5,2A13 Troy City Council election.

I would appreciate your contacting me within the next five business days so that we

may afiange a mutually agreeable time, no later than 10 business days thereafter, that I may

review electronic records of ballot images regarding the November 5, 2013 Troy City Council

election.Your response is aPPreciated.

Carmella R. Mantello47 Roselawn Avenue

Troy, NY 12180

Cc: NYS Board of Elections

Chairman Martin Reid

SEQ CHAPTER \h \r 1STATE OF NEW YORKDEPARTMENT OF STATECOMMITTEE ON OPEN GOVERIIMENT

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Douglas A. KellnerNew York State Board of Elections

40 North Pearl Street-Ste 5

Albany, NY 12207-2729

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February 21,2014

correspondence.

Dear Mr. Kellner:

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'l and the State Board of Elections, which you serve as Co-

Chair, h-as 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 ofwhich is the "official" fecord, and the other a "redundant backup." Because

they are stored in "randomized fashion", it is "impossible to associate any

parti.rlu, ballot image and its associated cast vote record with the order in

which the ballots were scanned", thereby "preserving the se6recy 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 Uy tne ballot scanners used to conduct our elections" are accessible

to the prLli" pursuant to the Election Law, andthat 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

iri"tui" "arry information kept, held, filed, produced or reproduced by, with

or for an agency or the state legislature, in any physical form

whatsoev er. .." Consequently, information maintained in some physical

form by an agency, whether on paper or electronically, constitutes a

l,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 ofelections are "records" subject to rights ofaccess'

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 53-222 of the

Election Law, entitled "Preseryation 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, wirich is tlearly distinguishable from subdivision (2) concerningo.voted ballots", those that &ist on paper and which are not maintained by

means of electronic media.

Subdivision (1 ) of $3-222 states in relevant partthat:

"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 competentjurisdiction. . ."

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 g87(2)(a) of FOIL in conjunction with 53-222 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 53-222 specifringthatelectronic 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 characteization 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" [CaBllal Ne*sBApgrs v. Burns, 67 NY2 d 562, 567 (1986)].

In like manner, in construing the equivalent exception to rights ofaccess 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 ofthis 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.

Shaptro, 455 U.S. 345,355,102 s. ct. 1103, 1 109,71L.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,606F.2d l2!5, 1220 (D.C.Cir.1979)(emphasis

added). In other words, a statute that is claimed to quali$ as an

Exemption 3 withholding statute must, on its face, exempt matters

from disclosure" [Reporters Committee forU.S. Department of Justice, 816 F.2d730,735 (1987); modified on

6ryr.""dr, 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' CommoditSl

Futures Trading commission-D.c.D.c .1979, 484 F.Supp. 47 ;

Florida Medical Ass'n. Inc. v. Department of Health-Ecl-& We.l-fare,

D.C.F1a. 197 9, 479 F.SuPP. 129 ll.

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 53-222(l) requires that electronic images "remain sealed

against reuse"" for a'time, after they have been preserved, in my view, the

sJaling requirement ends. Moreover, as you indicated in your letter

addressed io *", the last sentence of subdivision (3) of 53-222 states that,

unless otherwise ordered by a court:

"...atthe 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 53-222 of the Election Law.

In contrast, subdivision (2) of 53-222 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 ofcompetent 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 oflimitation 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.

Sincerely,

Robert J. Freeman

Executive Director

cc: James A Walsh

Gregory T. Paterson

Todd D. Valentine

Robert a. Brehm

February 21,2014Page PAGE \* MERGEFORMAT 5

ExFrrl:r,t B

Ned Pattison Rensselaer County Government CenterAvenuek 12180

SeventlNewYc

1600

Troy,