HON. RAYMOND J.

EL
JUSTICE
STATE OF NEW YORK
SUPREME COURT COUNTY F RENSSELAER
CARMELLA R. MANTELLO,
Petitioner,
For a Judgment Pursuant to Article 78 o
Civil Practice Law and Rules
LARRY A. BUGBEE and EDWARD G McDONOUGH,
as COMMISSIONERS OF THE BO OF ELECTIONS
OF THE COUNTY OF RENSSELAER. EW YORK,
Res
APPEARANCES:
At a Special Term of the Rensselaer County
Supreme Court, held in and for the County
of Rensselaer, in the City of Troy, New
York, on the 29'h day of July, 2014.
DECISION AND ORDER
[NDEX NO. 246649
the
Sharon Couch
406 Seventh A
Troy, New York 1
For the Petitioner
t82
Stephen A. Peche ik, Esq.
Rensselaer Coun Attorney
Ned Pattison Cou Government Center
1600 Seventh A
Troy, New York 1 180
For the Responde
nis, Esq.
RAYMOND J. ELLIOTT. III J.S.C.
tS
In this Article 78 proceeding, the
judgment
directing Respondents, Larry
Commissioners of the Board of Electi
Petitioner's inspection and review the pa
5,2013, Troy City Council election,
Law (hereinafter "FOIL"). The County
Opposition.
By correspondence dated F
electronic records of ballot images re
Petitioner cited FOIL and included an ad
Freeman, Executive Director of the
Government.
Respondents responded to
Respondents stated that, as Petitioner
ballots are no longer stored at the Board
responsible for providing technology su
ballots Petitioner had requested would
receipt of Petitioner's check they would
stated that based on their review of the
with a court order. Respondents
the Courts to review the requested paper
Petitioner requests that the Court
tioner, Carmella R. Mantello, seeks an order and
Bugbee and Edward G. McDonough, as
of the County of Rensselaer, to make available for
ballots, including voided ballots, from the November
to the New York State Freedom of Information
filed an Answer and a Aff,rrmation in Partial
24,2014, Petitioner requested access to review
ing the November 5,2013, Troy City Council election.
isory opinion dated February 21,2014, from Robert J.
of New York Department of State Committee on Open
's request by correspondence dated March 14,2014.
previously informed, the electronic copies of the
f Elections. Respondents had contacted the company
and was informed that to access the electronic
an estimated cost of $2,500.00.
They stated that upon
the electronic documents. Respondents further
visory Opinion, paper ballots can only be reviewed
that they would not oppose a request by Petitioner to
ballots.
issue an order and
judgment directing Respondents to
2
make all paper ballots, including voided
election available for her inspection and
of a court or
judge.
Respondents further
review all cast and voided ballots for the
Respondents state that they to Petitioner's request for the ballots in electronic
form. They further state that Petitioner's original request did not include the voided paper
ballots. Respondents assert that they den her request for the paper ballots pursuant to Election
Law
$3-222(2),which
states that paper lots are only available to the public based on the order
lots, from the November 5, 2013, Troy City Council
iew.
that Petitioner previously had the opportunity to
ying election at the hearing held for an election
law action she filed following the electi
Respondents state that they are lling to allow Petitioner access to the paper ballots, but
request that guidelines be issued for that iew. Respondents state that they are entering the
election season and the office and staff very busy. They request that any order allowing
Petitioner access to the paper ballots p ide them time to gather the paper ballots and set a two
the ballots. Respondents further request that Petitioner
hour per day fixed schedule for review o
pay the reasonable copying cost of25 per copy.
Mandamus to compel the pe nce of an official duty may only be granted where the
act sought to be compelled is ministerial n nature and involves no exercise of discretion, and
ear legal right thereto (see Reed v. Medford Fire Dept.,
., Sup Ct.,2009)).
where the applicant has demonstrated a
\nc.,2009 Slip op 32403(U),
[Suffolk
The Freedom of Information promotes open govemment and public accountability
govemment to make its records available to the public."
and, therefore, "imposes a broad duty on
89 NY2d 267
119961).
Under FOIL, agency records
are presumptively available for public i pection and copying unless the requested documents
fall within one of the exemptions set fi in Public Officers Law
$
87(2). (Matter of Fappiano v.
8
[2001]).
"Exemptions are to be narrowly construed to
seeking to prevent disclosure carries the burden of
falls squarely within a FOIL exemption by articulating
New York Cit), Police Dept., 95 NY2d 7
provide maximum access, and the age
demonstrating that the requested materia
a particularized and specific
justification
for denying access." (Matter of Newsday Inc. v. Empire
State Dev. Corp.,98 NY2d 359120021;
[1999]).
"So long as there is a clear legi
93 NY2d 145
intent to establish and preserve confidentiality of
that it is intended to establish a FOIL exemption."
lVe
records, a State statute need not expressl state
,235
ADzd44l3'd Dept. 19971).
Election Law
$3-222(2)
states: " oted ballots shall be preserved for two years after such
opened and the contents examined only upon order of a
election and the packages thereof may
court or
judge
of competent
jurisdiction, r by direction of such committee of the senate and
assembly if the ballots relate to the el under investigation by such committee, and at the
expiration of such time, such ballots ma
having charge of them."
be disposed of at the discretion of the officer or board
In his Advisory Opinion, Robert Freeman reviewed Election Law
$3-222(2)
and stated:
access to the records described in subdivisions (1) and
"The key word that distinguishes rights
(2) is'only' as it appears in the latter. term of limitation clearly prohibits disclosure of
paper ballots unless a court orders dj That being so, I believe that those paper ballots are
indeed'specifically exempted from di ure by statute', for they cannot be disclosed, except
4
under specified circumstances."
It appears from the papers, that
ballots, but also the statutory require
grant Petitioner's request for her inspecti
ballots, for the November 5, 2013, Troy
Accordingly, based on the forego
ORDERED, that the Petition is
further
ORDERED, that Respondents
and Order is served upon them to gather
ORDERED, that Respondent w
paper ballots, including voided ballots,
continuous period, except from Monday,
2014, to allow Respondents and the
carry out their duties for Primary Day on
ORDERED, that Petitioner will
2014, through Tuesday, November 11,
Board of Elections to prepare for and
November 4,2014; and it is further
ORDERED, that Petitioner is
makes; and it is further
ORDERED, that Petitioner's
is denied.
espondents recognize Petitioner's right to review the
for a court order to allow such access. The Court will
and review of the paper ballots, including the voided
ty Council election.
ng it is hereby
ted pursuant to Election Law
$3-222(2);
and it is
ll have a two week period from the date this Decision
paper ballots; and it is further
1l provide Petitioner access to inspect and review the
Monday through Friday, for a daily two hour
September 1,2014, through Tuesday, September 16,
County Board of Elections to prepare for and
Tuesday, September 9,2014; and it is further
have access to review from Monday, October 27,
14, to allow Respondents and the Rensselaer County
out their duties for Election Day on Tuesday,
y the costs of25 cents per copy for any copies she
uest for Respondents to pay her costs and disbursements
This shall constitute the Deci
Order and Judgment is being returned to
documentation is being filed with the Re
Decision, Order and Judgment shall not
not relieved from the applicable provisi
entrv.
SO ORDERED AND ADJUDG
ENTER.
Dated: July 29,2014
Troy, New York
Order and Judgment of the Court. This Decision,
he attorneys for Petitioner. All original supporting
County Clerk's Offrce. The signing of this
itute entry or filing under CPLR 2220. Counsel are
of that rule relating to filing, entry, and notice of
RAYMOND J. ELLIOT,III
Supreme Court Justice
Papers Considered:
1. Notice of Petition
Petitioner Pursuant to
Couch DeBonis, Esq.,
Exhibits.
2. Affirmation in Partial
2014; Answer dated May
to Article 78 of the CPLR dated May I
,2014;
le 78 of the CPLR of Carmella R. Mantello, by Sharon
and verified on April 28,2014; with annexed
ition of Stephen A. Pechenik, Esq., dated May 23,
7,2014.