Absentee and affidavit ballots being counted at the Suffolk County Board of Elections after a party primary election for town supervisor in September 2015. File photo: Katie Blasl

An advocacy group is calling for reforms to state public information laws after their report found that several county boards of elections in New York, including Suffolk’s, displayed a lack of transparency in answering their requests for meeting information.

Suffolk County was one of 19 county boards of elections tested across the state for compliance with the state’s Freedom of Information Law and Open Meetings Law — laws created to affirm the public’s right of access to government decision-making — in a report published Tuesday by the New York Coalition for Open Government, a nonpartisan advocacy group. 

The group tested several of the largest counties from every region of the state. The first phase of the investigation involved the coalition’s members contacting the board of elections by phone calls and emails, asking them questions regarding the board’s meetings and whether information pertaining to the meetings, such as notices, agendas and minutes, were posted online. Suffolk was one of 10 of the county boards contacted that did not respond to the questions, according to the report. 

The group then sent FOIL requests to all 19 of the county boards of elections chosen for the report, requesting the minutes of their election commissioner meetings from 2018-2021, the report states. There are two election commissioners per county, a Democrat and a Republican appointed by the county legislature, on the recommendation of their party’s committees, for two-year terms. They create, implement and oversee the board of elections’ policy.

Only five of the 19 county boards who received the group’s FOIL request sent an acknowledgement in response to the request in the five business day period outlined by state law, the report states. Four others responded a few days late. Suffolk County’s Board of Elections did not respond at all.

The group then sent a second FOIL request to those who did not respond to the first request, according to the report. Suffolk County’s Board of Elections responded within two days to the second FOIL request and supplied the minutes recorded for their monthly meetings compliant with the group’s request. They were only one of two — out of 10 — that responded to the second FOIL request. 

“At the end of the day, we received the meeting minutes from 10 of the 19 boards — which is a success rate of 53% — a pretty pitiful success rate,” said Paul Wolf, president of the New York Coalition for Open Government. “One of the responses we received just came in on Friday, so like six or seven months after our request. So just a terrible response by election boards across the state in regards to foil requests that were sent.”

Wolf said the coalition wants more accountability for violations of the Freedom of Information law. The main recommendation from the group is the creation of an enforcement agency within the state which has the power to investigate and impose fines for FOIL and OML violations, similar to other states like Connecticut, who have a Freedom of Information Commission. An alternative is to give that enforcement power to another office, like the attorney general has in Massachusetts, the group said.

New York State currently has a Committee on Open Government that provides information on FOIL and OML, and provides advisory opinions, but does not have any enforcement authority and has no power to penalize a government entity for violating the laws. A person whose FOIL request is denied by a public body can appeal the decision within the public body. If an appeal is denied, the only recourse for person seeking access to records is to bring a lawsuit asking a court to order the release of records sought.

The group recommends the New York State Board of Elections provide more training to county boards to comply with OML and FOIL. The report states that the group sent two emails to the State Board of Elections requesting materials they supply to the county boards regarding OML, but has received no response.

The group also recommends that county boards should be required to livestream their meetings and post their recordings, and the public should be able to comment during their meetings. 

They say the state law should be more clear that county election commissioners must conduct business through public meetings. The report states that various court decisions made decades ago have determined that certain actions that are usually done through open meetings by other government entities, including the hiring of employees, do not require a meeting of the board of elections for action.

“When a town board or city council hires to fill positions they do so by casting votes in a public meeting. Legislation should be adopted to address the bad court decisions made 30 years ago to require county board of elections to conduct their business through public meetings,” the report states. “We need to bring the patronage hiring and other business occurring behind closed doors into the sunlight for everyone to see.”

They also said the OML should be amended to require deliberations for quasi-judicial proceedings, which would include processes like objections to petitions, be made in public meetings. The group says the change would apply the board to the same OML rules as local zoning boards of appeals and the New York State Public Service Commission.

“The results of our study show that election boards are not conducting their business in public,” the report reads. “Meetings, if they occur, are happening often without the public or media being notified. The daily business and statutory duties of election boards are being handled behind closed doors while the public and news media are kept in the dark.”

“The New York State Legislature has the ability to bring more sunlight to the operation of County Board of Elections by passing legislation as recommended,” the report states.

East End State Senator Anthony Palumbo (R-New Suffolk) said he would support imposing financial sanctions on government entities who intentionally violate FOIL. He said the restrictions are even more necessary because of recent scandals, like the undercounting of COVID-19 related deaths in nursing homes during the administration of former-Gov. Andrew Cuomo.  

“I think if we impose some sanctions on the municipality for intentionally delaying or improperly denying this information then they may be a little bit more attentive to these types of requests,” Palumbo said.

Palumbo, who is a member of the Senate’s Investigations and Government Operations committee, pointed to the committee’s unanimous passage Monday of S2004, a law which allows a court to require a public body to pay the legal fees of a plaintiff who wins an appeal against a wrongful denial of records pursuant to FOIL, as a sign of support in the legislature for issues involving open government.

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Alek Lewis is a lifelong Riverhead resident and a 2021 graduate of Stony Brook University’s School of Communication and Journalism. Previously, he served as news editor of Stony Brook’s student newspaper, The Statesman, and was a member of the campus’s chapter of the Society of Professional Journalists. Email: [email protected]