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 PURSUANT
TO ARTICLE 78
OF THE CPLR
Index No.: ZtlLob
Uq
RJI 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 Petitioner
406 Seventh Avenue
Troy, NY 12182
(stg) 237-187t
TO: LARRY A. BUGBE,E
EDWARD G. MoDONOUGH
Commissioners, 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 YORK
COI,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 PURSUANT
TO ARfiCLE 78
OF T}IE CPLR
IndexNo.:
'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.&
2014
I
(1
I
SIIARON COUCH DeBONIS
Attomey for Petitioner
406 Seventh Avenue
Troy, NY 12182
(sl8) 237-t87r
TO: LARRY A. BUCBEE
EDWARD G. McDONOUGH
Commissioners,
Rensselac County Board of Elections
Ned Pattison Rensselaer County Government Center
1600 Seventh Avenue
Troy, hfY 12180
VERIFICATION
STATE OF NEW YORK
COTINTY 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 of
April
,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 of
ballot 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. Mantello
47 Roselawn Avenue
Troy, NY 12180
Cc: NYS Board of Elections
Chairman Martin Reid
SEQ CHAPTER \h \r 1STATE OF NEW YORK
DEPARTMENT OF STATE
COMMITTEE ON OPEN GOVERIIMENT
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Douglas A. Kellner
New 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 of
which 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 of
elections 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) concerning
o.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 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
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 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.
$552(b)(3)
(1982) (emphasis added). Records sought to be
withheld under authority of another statute thus escape the release
requirements of FOIA if
-
and only if
-
that statute meets the
requirements of Exemption 3, including the threshold requirement
that specifically exemptS matters from disclosure. The Supreme
Court has equated 'specifically'
with 'explicitly.' Baldridge v.
Shaptro, 455 U.S. 345,355,102
s. ct. 1103, 1 109,71L.Ed.2d 199
(1982). '[O]nly explicitly non-disclosure states that evidence a
congressional determination that certain materials ought to be kept in
confidence will be sufficient to qualify under the exemption.' Irons
& Sears v. Dann,606F.2d
l2!5, 1220 (D.C.Cir.1979)(emphasis
added). In other words, a statute that is claimed to quali$ as an
Exemption 3 withholding statute must, on its face, exempt matters
from disclosure"
[Reporters
Committee for
U.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 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.
Sincerely,
Robert J. Freeman
Executive Director
cc: James A Walsh
Gregory T. Paterson
Todd D. Valentine
Robert a. Brehm
February 21,2014
Page PAGE \* MERGEFORMAT
5
ExFrrl:r,t
B
Ned Pattison Rensselaer County Government Center
Avenue
k 12180
Seventl
NewYc
1600
Troy,