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Lynn K. Neuner and William T. Russell Jr. Lynn K. Neuner and William T. Russell Jr.

In In the Matter of Kosmider v. Whitney, the Court of Appeals ruled that scanned images of paper election ballots are protected from disclosure in response to a FOIL request. The majority determined that there is no basis to distinguish between the scanned images and the paper ballots themselves under Election Law §3-222, which restricts the disclosure of ballots for the two years after an election. A two-judge dissent disagreed and argued that, while the paper ballots are immune from disclosure under §3-222, that protection does not extend to the scanned images. While reaching opposite conclusions, both the majority and the dissent rely on the plain text of the Election Law and the public policy of preserving the sanctity of the election process.

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