ALBANY — The New York State Supreme Court decided Thursday that the state's Freedom of Information Law covers the electronically scanned images of ballots taken from voting machines.

This is how it works: A person fills out a paper ballot, which doesn’t have his or her name or identifying information on it. The voter slips that ballot into a voting machine, where an electronic image is recorded. That image is saved onto two flash drives in a random fashion, which preserves anonymity. The paper ballot is then fed into a secure box underneath the machine. One flash drive is removed and given to the local board of elections. All the data is transferred over to a larger hard drive, and the now-blank flash drive can be used for another election.

Only after the process is complete can the vote be requested via FOIL.

The decision was made in the case of Kosmider v. Whitney.



In 2016, Essex County Democratic Committee Chairwoman Bethany Kosmider, a former Crown Point town supervisor, requested access to the images of Essex County ballots and cast-vote records from the 2015 local election.

She was denied.

Essex County Attorney Daniel Manning, who is also records-management officer for the county, treated the matter as if Kosmider had requested the information through FOIL.

He said it didn’t cover the access she wanted and that a court order was required.

In response, Kosmider wound up suing Essex County Election Commissioners Mark Whitney (Democratic) and Alison McGahay (Republican), as well as Bill Ferebee (R-Keene), who was then chairman of the Essex County Board of Supervisors.




State Supreme Court Justice Martin Auffredou issued an order to Essex County on Jan. 19, 2017, saying it had to release the images and records.

The county appealed the ruling.

Robert Freeman, executive director of the state Committee on Open Government, said in a phone interview Thursday that it seemed clear from the start that the images would be made available.

He said unless a person tells someone who they voted for, there really isn’t a way to trace a ballot to the voter who cast it.

“We should be concerned about privacy,” he said, “but there are situations, at least in my view, where there is no possible way to obtain a person’s identity.”



Of the recent decision from the state Supreme Court, Manning told the Enterprise on Thursday it was a little too early to comment.

“We only received the decision today, so I haven’t been able to discuss it with the board yet,” he said.

The court’s ruling was not unanimous. Justice Philip Rumsey dissented, saying FOIL doesn’t cover electronic images. This allows for the county to go to the Court of Appeals.

“We could appeal to the Court of Appeals,” Manning said, “but again, that decision hasn’t been made yet.”

As for his opinion on the ruling, he said, “I disagree with it. We’ve always tried to do what we thought the law said.”


— Aaron Cerbone is a reporter for the Adirondack Daily Enterprise. The Press-Republican, Enterprise, Glens Falls Post Star and Watertown Daily Times share coverage of local issues of interest.

Press-Republican Editor Suzanne Moore contributed to this report.

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