Kosmider v. Whitney

• Decision Date: 13 June 2019
• Docket Number: No. 41,41
• Citation: 132 N.E.3d 592,108 N.Y.S.3d 399,34 N.Y.3d 48
• Parties: In the Matter of Bethany KOSMIDER, Respondent, v. Mark WHITNEY, as Commissioner of the Essex County Board of Elections, Respondent, Allison McGahay, as Commissioner of the Essex County Board of Elections, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

34 N.Y.3d 48

132 N.E.3d 592

108 N.Y.S.3d 399

In the Matter of Bethany KOSMIDER, Respondent,

v. Mark WHITNEY, as Commissioner of the Essex County Board of Elections, Respondent,Allison McGahay, as Commissioner of the Essex County Board of Elections, et al., Appellants.

No. 41

Court of Appeals of New York.

June 13, 2019

OPINION OF THE COURT

DiFIORE, Chief Judge.

During the two years following an election, Election Law § 3–222(2) precludes examination of "voted ballots" absent a court order or legislative committee direction. Because electronic copies of ballots are no less protected from disclosure under section 3–222 during the relevant time frame, we reverse the Appellate Division order affirming the judgment directing disclosure of those copies and deny the petition.

The document request giving rise to this appeal concerns the electronic voting system implemented in 2009. Since the adoption of this system, voters going to the polls on election day each mark a standardized paper ballot, which is then scanned by an electronic voting machine. The machine deposits the paper ballot in a secure ballot box and stores the scanned copy of the ballot and an associated electronic record of how the machine counted its votes on two removable memory cards (e.g., flash drives). One memory card remains in the machine for use during the recanvass process, and the other is returned to the applicable board of elections for preservation of its contents – copies of the ballots that were scanned into the machine – by transfer to other electronic storage media, such as a hard drive or CD.

In December 2015, petitioner Bethany Kosmider forwarded a series of emails to the Essex County Board of Elections (County Board) requesting the electronic copies of ballots stored by County voting machines in the November 2015 general election and preserved by the County Board. The two Commissioners of the County Board were divided regarding whether the Election Law permitted release of the electronic ballot images and forwarded the request to the County Attorney. The County Attorney, treating the inquiry as a FOIL request, determined that Election Law § 3–222(2), barring examination of "voted ballots" absent a court order or legislative committee direction in the first two years following an election, precluded disclosure of the electronic copies of the ballots as an exemption to FOIL pursuant to Public Officers Law § 87(2)(a). Petitioner appealed the decision to the County FOIL Appeals Officer, who affirmed denial of the request, citing Election Law § 3–222(2).

In June 2016, petitioner commenced this CPLR article 78 proceeding in Supreme Court against the Commissioners of the County Board and the County FOIL Appeals Officer, seeking an order directing release of the ballot copies. Petitioner argued that Election Law § 3–222(1), which restricts access to voting data on removable memory cards, does so only until the data is preserved and that subsection (2) restricts access to paper ballots but not electronic copies of the ballots. Respondents answered and raised affirmative defenses, including that the electronic ballot copies were barred from release by Election Law § 3–222(2) without court order or legislative committee direction, which precluded disclosure of those materials pursuant to a FOIL request.¹

Supreme Court granted the petition and ordered immediate release of the ballot images, concluding that Election Law § 3–222 does not shield them from disclosure ( 56 Misc.3d 354, 46 N.Y.S.3d 403 [Sup. Ct., Essex County 2017] ). Applying standards developed under FOIL, the court determined that the two-year limitation on examination of "voted ballots" outlined in subsection (2) does not encompass electronic ballot copies ( 56 Misc.3d at 361–62, 46 N.Y.S.3d 403 ). The court commented that differential treatment under the statute of paper ballots and the preserved electronic copies sought here comports with the statute's anti-tampering purpose, as Election Law § 3–222(1) restricts access to voting data prior to preservation, and the risk of tampering with preserved electronic copies is remote ( id. ).

The Appellate Division affirmed, with two Justices dissenting (160 A.D.3d 1151, 75 N.Y.S.3d 305 [3d Dept. 2018] ). A two-Justice plurality agreed with Supreme Court that the ballot images should be disclosed pursuant to FOIL, noting that FOIL exemptions are to be interpreted narrowly and that the statute's two-year preservation and restricted examination rule encompasses paper ballots but not electronic copies ( 160 A.D.3d at 1154, 75 N.Y.S.3d 305 ). It determined that the statute reflects only a legislative intent to prevent tampering – not to protect confidentiality of ballots – and, thus, the distinction between paper ballots and electronic copies reflects the Legislature's awareness of different preservation procedures for what it viewed as two categories of materials ( id. at 1154–55, 75 N.Y.S.3d 305 ). One Justice concurred on a different rationale, reasoning that even if the electronic ballot copies are exempted from FOIL disclosure for two years, that time passed while the case was pending on appeal and a court order was no longer required ( 160 A.D.3d at 1157, 75 N.Y.S.3d 305 [Aarons, J., concurring] ).²

The two dissenting Justices determined that the FOIL standard – imposing a presumption of access and requiring courts to narrowly interpret disclosure exemptions – was not dispositive ( 160 A.D.3d at 1157, 75 N.Y.S.3d 305 [Rumsey, J., dissenting] ). Rather, they reasoned that Election Law § 3–222 regulates "examination" of ballots during the first two years after an election and therefore does not authorize "public release" of ballots during that time ( id. at 1157, 75 N.Y.S.3d 305 ). The dissent also disagreed with the plurality's conclusion that Election Law § 3–222(2) does not encompass the documents sought here, which "are merely electronic copies of the voted ballots" ( id. at 1158–59, 75 N.Y.S.3d 305 ). The dissent explained that permitting access to electronic copies without a court order pursuant to FOIL, while at the same time recognizing the need for such an order to gain access to paper ballots, is "an illogical interpretation of the statute that should be avoided" ( id. at 1159, 75 N.Y.S.3d 305 ).

Respondents appealed as of right based on the two-Justice dissent. We reverse and deny the petition on the basis that Election Law § 3–222(2), which prohibits examination of "voted ballots" absent a court order or legislative committee direction during the first two years following an election, precluded the County Board from granting petitioner's request for disclosure of electronic copies of those ballots.

FOIL requires that public agencies "make available for public inspection and copying all records" except where they fall within one of the statute's enumerated exemptions ( Public Officers Law § 87[2] ). This presumption of access subject to legislative exemptions recognizes "the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" and the parallel "legitimate need" to keep certain government matters confidential ( Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979] ). We typically construe exemptions narrowly, and an agency has the burden of demonstrating that an exemption applies "by articulating a particularized and specific justification for denying access" ( Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 [1986] ).

Public Officers Law § 87(2)(a), the FOIL exemption at issue, provides that an agency may deny access to records that are "specifically exempted from disclosure by state or federal statute." While an applicable "state or federal statute" need not "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 a FOIL disclosure claims as protection" ( Capital Newspapers, 67 N.Y.2d at 567, 505 N.Y.S.2d 576, 496 N.E.2d 665 ). Respondents assert that Election Law § 3–222 creates such an exemption. To determine whether Election Law § 3–222 reflects the requisite legislative interest in confidentiality, we must interpret the statute.

The plain text of a statute is the best indicator of legislative intent and thus the proper starting place in discerning its meaning ( Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] ). When a statute is part of a broader legislative scheme, its language must be construed "in context and in a manner that harmonizes the related provisions and renders them compatible" ( Matter of M.B., 6 N.Y.3d 437, 447, 813 N.Y.S.2d 349, 846 N.E.2d 794 [2006] [internal punctuation and citation omitted] ). With respect to the Election Law, we have cautioned that "where ... the Legislature ‘erects a rigid framework of regulation, detailing ... specific particulars,’ there is no invitation for the courts to exercise flexibility in statutory interpretation" ( Matter of Gross v. Albany County Bd. of Elections, 3 N.Y.3d 251, 258, 785 N.Y.S.2d 729, 819 N.E.2d 197 [2004], quoting Matter of Higby v. Mahoney, 48 N.Y.2d 15, 20 n. 2, 421 N.Y.S.2d 35, 396 N.E.2d 183 [1979] ). Legislative pronouncements specific to voting and the electoral process must be faithfully executed, as "[t]he sanctity of [that] process can best be guaranteed through uniform application of the law" ( Matter of Gross, 3 N.Y.3d at 258, 785 N.Y.S.2d 729, 819 N.E.2d 197 ). Thus, we must also honor these principles in determining whether the FOIL standard is met.

Election Law § 3–222 contains three subsections relevant to this dispute that set forth a complex system of preservation and judicially supervised "examination" of ballots. Subsection (1) addresses preservation and examination of...