Tatko v. Vill. of Granville

• Decision Date: 21 July 2022
• Docket Number: 534457
• Citation: 207 A.D.3d 975,172 N.Y.S.3d 233
• Parties: In the Matter of Robert L. TATKO, Appellant, v. VILLAGE OF GRANVILLE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 975
172 N.Y.S.3d 233

In the Matter of Robert L. TATKO, Appellant,
v.
VILLAGE OF GRANVILLE et al., Respondents.

534457

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 2, 2022
Decided and Entered: July 21, 2022

172 N.Y.S.3d 235

Fusco Law Office, Albany (Adam Fusco of counsel), for appellant.

The Law Office of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Lynch, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

207 A.D.3d 975

Appeal from a judgment of the Supreme Court (Auffredou, J.), entered May 25, 2021 in Washington County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents denying petitioner's Freedom of Information Law request.

On September 15, 2020, petitioner was defeated in a special election, administered by respondent Village of Granville (hereinafter the Village), for the office of Village trustee (see Election Law § 15–106 ). The certified vote reflected that petitioner lost by a vote of 180–164, with absentee ballots accounting for 91 of his opponent's votes, but only 14 of his own. Petitioner suspected that the high number of absentee ballots cast for his opponent reflected some sort of irregularity in the voting process, and his counsel submitted a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request for various election-related items to respondent Richard Roberts, who was the Village Clerk and Treasurer as well as the Village's records access officer. The request sought items under five categories, namely: (1) a list of all individuals who had received and/or requested an absentee ballot; (2) a list of all individuals who had returned an absentee ballot; (3) all applications for an absentee ballot; (4) all voter files for anyone who returned, received and/or requested an absentee ballot, including the signature on file for those voters; and (5) a copy of all absentee ballot envelopes showing the date of receipt as well as any outer envelopes showing the postmarked date.

In response, Roberts reminded petitioner that he had already

207 A.D.3d 976

reviewed the items responsive to the first request and invited petitioner's counsel to make an appointment to inspect documents responsive to the first and second requests. Roberts

172 N.Y.S.3d 236

indicated that items responsive to the third request, redacted to prevent disclosure of information that constituted an unwarranted invasion of voters’ privacy, would be made available for inspection in the same manner. Roberts denied the fourth request as both vague and as appearing to seek poll books and voter signature files that were in the exclusive possession of the Washington County Board of Elections, although Roberts invited petitioner to clarify that request if it had been misunderstood. Roberts also denied the fifth request, advising petitioner that those records were not subject to FOIL and could only be accessed with an appropriate court order.

Petitioner submitted an administrative appeal in which he rehashed his initial requests, sought copies of the responsive documents and added, with regard to the fourth request that Roberts had found to be unclear, that he was seeking a "voter dump." Respondent Mayor of the Village of Granville satisfied the second request by turning over a list of individuals who returned an absentee ballot, but otherwise upheld Roberts’ determination in all respects. The Mayor, in so doing, provided a legal memorandum detailing the basis for his beliefs that the Election Law only permitted inspection of the documents sought under petitioner's first and third requests and that petitioner was barred from reviewing the absentee ballot envelopes sought under the fifth request absent a court order. Petitioner then commenced this CPLR article 78 proceeding, complaining about both the scope and the method of access. Supreme Court dismissed the petition, and petitioner appeals.

We affirm. At the outset, although FOIL generally directs that governmental entities make public records "available for public inspection and copying," respondents properly determined that the more specific provisions of the Election Law were controlling and only allowed inspection of documents responsive to petitioner's first and third requests ( Public Officers Law § 87[2] [emphasis added]; see People v. Mobil Oil Corp., 48 N.Y.2d 192, 200, 422 N.Y.S.2d 33, 397 N.E.2d 724 [1979] [noting that a specific statutory provision controls over a general one]). Those requests sought a list of individuals who had received and/or requested absentee ballots as well as the applications for those ballots. Election Law § 3–220(1)...