An Exploration of FOIL Re: Digital Ballots

As the readers of this blog know, Saratoga County has denied repeated FOIL requests from professor Robert Turner for the digital images of ballots from the last election.  According to the Gazette Newspaper, the New York State Department of State Committee on Open Government issued an opinion that argued that these images are covered under FOIL.  I contacted Mr. Freeman and he sent me a copy of his opinion.  I thought reviewing this opinion might help the readers of this blog to better understand FOIL (Freedom of Information Law).

Robert Freeman is the executive director of the New York State Department of State Committee on Open Government.  In February of 2014 he issued an opinion regarding whether the digital images of election ballots were accessible to the public under the Freedom of Information Law.  In his letter he affirmed that they were.

I summarize his major points here.  For those not familiar with FOIL his letter offers some insight into the law.

He states:

“First, FOIL is expansive in scope, for it pertains to all government agency records.”

He notes the very broad interpretation of what is a record:

“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…’” 

Under this broad definition he asserts that ballot images held by the county boards of elections constitute “records.”

He notes that the concept of FOIL is “…based on a presumption of access. “  This means that the onus of proving that records are not accessible falls on the holder of the records.  There are exceptions to FOIL and the custodian of the records must prove that one of these exceptions pertains to those records in order to deny access to them.  These exceptions are listed in §87(2) of the FOIL law.

Mr. Freeman then asserts that the digital images do not fall under any of the exceptions.

At the time he was writing this opinion he was addressing the denial by Putnam County of their ballot images.  According to his letter, Putnam County denied the records based on section §87(2)(a) of FOIL in conjunction with §3-222 of the Election Law.  Section 87(2)(a) states that in order to deny access to the item it must be “…specifically exempted from disclosure by state or federal statute”

Mr. Freeman rejected the assertion that the ballot images were exempt asserting that “…there is nothing in the language of subdivision (1) of §3-222 [JK: Election Law] specifying that electronic images of ballots cast are confidential or “exempted from disclosure.”

To emphasize this point he noted that the Court of Appeals [JK: The highest court in New York] and the federal courts must, in order to assert records are “confidential” or “exempted from disclosure by statute”, document that the law pertaining to the records has clear and specific language that states this.

Both the Court of Appeals and federal courts 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.

Freeman writes:

“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.”

 He notes that election law states 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…”’

As such the actual ballots are exempt from the FOIL law.  The important point here is that the law makes no such condition regarding the “images” of these ballots.  They are therefore available under FOIL.

It’s Freeman’s Opinion But The Courts Have Not Resolved The Issue

Mr. Freeman and his office are not, however, the final arbiters of what is FOILable.  It is the courts of New York who, in the end, decide the issue.

I would have preferred that Saratoga County had used Freeman’s opinion and released the images of the ballots.  Essex County is being sued over this same issue.  The plaintiffs won their initial suit in court but Essex County has filed notice of their intent to appeal the decision to the New York State Court of Appeals.  Legally, the county is fully within its rights to deny Robert Turner’s FOIL request until such time as the Court of Appeals rules on the case.

One never knows how courts will rule but based on Mr. Freeman’s extensive knowledge and long history, it is reasonable to be optimistic.