Mantello Decision and Order

HON. RAYMOND J. ELJUSTICE

STATE OF NEW YORKSUPREME COURT COUNTY F RENSSELAER

CARMELLA R. MANTELLO,

Petitioner,

For a Judgment Pursuant to Article 78 oCivil Practice Law and Rules

LARRY A. BUGBEE and EDWARD G McDONOUGH,as COMMISSIONERS OF THE BO OF ELECTIONSOF THE COUNTY OF RENSSELAER. EW YORK,

Res

APPEARANCES:

At a Special Term of the Rensselaer CountySupreme Court, held in and for the Countyof Rensselaer, in the City of Troy, NewYork, on the 29'h day of July, 2014.

DECISION AND ORDER[NDEX NO. 246649

the

Sharon Couch406 Seventh ATroy, New York 1

For the Petitionert82

Stephen A. Peche ik, Esq.Rensselaer Coun AttorneyNed Pattison Cou Government Center1600 Seventh ATroy, 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 Petitionerhour 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 aelection 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 ADJUDGENTER.

Dated: July 29,2014Troy, 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,IIISupreme Court Justice

Papers Considered:

1. Notice of PetitionPetitioner Pursuant to

Couch DeBonis, Esq.,

Exhibits.

2. Affirmation in Partial2014; 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.