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ELECTION LAW 3-222 WHICH PROHIBITS DISCLOSURE OF VOTED BALLOTS FOR TWO YEARS AFTER AN ELECTION APPLIES BOTH TO PAPER BALLOTS AND ELECTRONIC BALLOTS (CT APP).

The Court of Appeal, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions (three dissenting judges), reversing the Appellate Division, determined that Election Law 3-222 (2), which prohibits, for two years, the disclosure of “voted ballots” absent a court order of legislative committee direction, prohibits the disclosure of the electronic form of the ballots:

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” … . 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. * * *

… . [T]he rule in Election Law § 3-222(2) that “voted ballots” are protected from examination during the first two years after an election absent court order or direction from a relevant legislative committee extends to electronic copies of those ballots. The same is true of absentee and military ballots, which are “voted ballots” under subsection (2) and, along with their envelopes, are also specifically protected in subsection (3). Matter of Kosmider v Whitney, 2019 NY Slip Op 04757, CtApp 6-13-19

 

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