August 24, 2007

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.


I have received your letter in which you requested an advisory opinion pertaining to the Freedom of Information Law.

You wrote that the Rockland County Board of Elections has received a complaint concerning a “challenge of someone’s (a candidate for office) registration.” Consequently, pursuant to §5-702 of the Election Law, the Board conducted an investigation and sent a “voter’s check card” to the local police department, which conducts an investigation as well. Subdivisions (1) and (2) of that statute provide in relevant part as follows:

“1. The board of elections shall cause a bipartisan team of regular or special employees of such board to conduct an investigation of the qualifications to register and vote, or cause a voter’s check card to be prepared for each voter who was registered after being challenged or who was challenged after resignation and, if requested by any member of the board, for any other voter. The board shall forthwith deliver each such voter’s check card to the head of the police department in the city, town or village in which the voter resides, or, if there be no such police department, to the sheriff or head of the police department of the county. The board shall make and retain an inventory list of all cards so delivered.

“2. The head of the police department or sheriff, forthwith shall cause an investigation to be made to determine, in each instance, whether the registrant resides, and how long he has resided, at the address at which he claims a residence, and to check the facts relating to why the voter was challenged.”

Subdivision (3) of §5-702 requires that the police department return the voter’s check card to the Board of Elections, which it has done.

You have asked whether the letter of complaint and the voter’s check card must be disclosed. In this regard, I offer the following comments.

As you are aware, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law. I note that the introductory language of §87(2) refers to the ability to withhold “records or portions thereof” that fall within the grounds for denial that follow. The phrase quoted in the preceding sentence indicates that there may be instances in which a single record includes both accessible and deniable information, and that an agency is required to review a record that has been requested to determine which portions, if any, may properly be withheld.

The exception to rights of access of primary significance relative to complaints, in my view, pertains to the protection of privacy, and §87(2)(b) permits an agency to deny access to records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” It has generally been advised that those portions of a complaint or other record which identify complainants may be deleted on the ground that disclosure would result in an unwarranted invasion of personal privacy. I point out that §89(2)(b) states that an "agency may delete identifying details when it makes records available." Further, the same provision contains five examples of unwarranted invasions of personal privacy, the last two of which include:

"iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."

In my opinion, what is relevant to the work of the agency is the substance of the complaint, i.e., whether or not the complaint has merit. The identity of a member of the person who made the complaint is often irrelevant to the work of the agency, and in most circumstances, I believe that identifying details may be deleted. It has also been advised that a complaint might properly be withheld in its entirety if, due to its contents, disclosure would permit a recipient of the record to determine the identity of the complainant.

I point out that the Freedom of Information Law is permissive. As a general matter, even though an agency may withhold records or portions thereof in accordance with the grounds for denial of access, it is not required to do so. As stated by the Court of Appeals:

“...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency’s discretion to disclose such records, with or without identifying details, if it so chooses” [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].

With respect to the “voter’s check card”, pertinent is §89(6) of the Freedom of Information Law, which states that: “Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records.” Therefore, if a different provision of law specifies rights of access to records, nothing in the Freedom of Information Law may be asserted to withhold those records. One such provision of law is §3-220 of the Election Law. Subdivision (1) of that statute provides in relevant part that:

“All registration records, certificates, lists and inventories referred to in, or required by, this chapter shall be public records open to public inspection under the immediate supervision of the board of elections or its employees...”

“This chapter” is the entirety of the Election Law, and the voter’s check card, as indicated earlier, must be prepared concerning any registered voter who is challenged. From my perspective, that record is a “registration record...required by, this chapter,” specifically, §5-702(1) of the Election Law. If my analysis is accurate, the voter’s check card must be disclosed pursuant to §3-220(1) of the Election Law, notwithstanding the provisions of the Freedom of Information Law.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director