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FOIL-AO-13120

January 4, 2002

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.

Dear

I have received your letter of December 15 and the materials attached to it. Your complaint relates to requests to the New York City Clerk for copies of certain marriage records. Rather than photocopying the actual records, a letter was sent to you that included minimal information that appears to have been derived from the records. You have questioned whether the Clerk is obliged to provide "a physical copy of the document itself - with redactions if necessary."

From my perspective, the law requires that copies of the records of your interest be made available upon payment of the appropriate fee, likely after the deletion of various details. Several statutes are pertinent to an analysis of rights of access, and in this regard, I offer the following comments.

As you may be aware, under the Freedom of Information Law, it has been established that the reasons for which a request is made and an applicant's potential use of records are irrelevant, and it has been held that if records are accessible, they should be made equally available to any person, without regard to status or interest [see e.g., M. Farbman & Sons v. New York City, 62 NYS 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. The only exception to that principle relates to §89(2)(b)(iii) of the Freedom of Information Law, which permits an agency to withhold "lists of names and addresses if such list would be used for commercial or fund-raising purposes" on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Due to the language of that provision, the intended use of a list of names and addresses is relevant, and case law indicates that an agency can ask that an applicant certify that a list would not be used for commercial purposes as a condition precedent to disclosure [see Golbert v. Suffolk County Department of Consumer Affairs, Sup. Ct., Suffolk Cty., (September 5, 1980); also, Siegel Fenchel and Peddy v. Central Pine Barrens Joint Planning and Policy Commission, Sup. Cty., Suffolk Cty., NYLJ, October 16, 1996]. With specific respect to marriage records, provisions of the Domestic Relations Law include conditions regarding disclosure. I believe that some aspects of marriage records must be disclosed to any person, while others may or may not be made available, depending on the purpose for which a request is made. Subdivision (1) of §19 states in relevant part that:

"Each town and city clerk hereby empowered to issue marriage licenses shall keep a book supplied by the state department of health in which such clerk shall record and index such information as is required therein, which book shall be kept and preserved as a part of the public records of his office. Whenever an application is made for a search of such records the city or town clerk, excepting the city clerk of the city of New York, may make such search and furnish a certificate of the result to the applicant upon the payment of a fee of five dollars for a search of one year and a further fee of one dollar for the second year for which such search is requested and fifty cents for each additional year thereafter, which fees shall be paid in advance of such search. Whenever an application is made for a search of such records in the city of New York, the city clerk of the city of New York may make such search and furnish a certificate of the result to the applicant upon the payment of a fee of five dollars for a search of one year and a further fee of one dollar for the second year for which search is requested and fifty cents each additional year thereafter...All such affidavits, statements and consents, immediately upon the taking or receiving of the same by the town or city clerk, shall be recorded and indexed as provided herein and shall be public records and open to public inspection whenever the same may be necessary or required for judicial or other proper purposes. At such times as the commissioner shall direct, the said town or city clerk, excepting the city clerk of the city of New York, shall file in the office of the state department of health the original of each affidavit, statement, consent, order of a justice or judge authorizing immediate solemnization of marriage, license and certificate, filed with or made before such clerk during the preceding month. Such clerk shall not be required to file any of said documents with the state department of health until the license is returned with the certificate showing that the marriage to which they refer has been actually performed.

"The county clerks of the counties comprising the city of New York shall cause all original applications and original licenses with the marriage solemnization statements thereon heretofore filed with each, and all papers and records and binders relating to such original documents pertaining to marriage licenses issued by said city clerk, in their custody and possession to be removed, transferred, and delivered to the borough offices of the city clerk in each said counties."

The foregoing makes reference to "original applications and original licenses", as well as other records relating to the application for and issuance of a license.

From an historical perspective, it is my understanding that certain kinds of activities have been licensed because of some significant governmental interest in whatever the area of activity might be. In general, the issuance of a license is intended to enable the public to know that an individual is qualified to engage in a certain kind of activity, such as practicing law or medicine, selling real estate, being an architect, possessing a firearm, or driving a car. In every instance, a record indicating that an individual is licensed, qualified to carry out a certain kind of activity, is public. The same is true according to the Domestic Relations Law, and the only judicial decision on the subject rendered within the past several years concerning those who apply for and are granted marriage licenses has so held [see Gannett Co., Inc. v. City Clerk's Office, City of Rochester, 596 NYS 2d 968, affirmed unanimously, 197 AD 2d 919 (1993)].

In its decision, the court referred to provisions in the Freedom of Information Law that enable agencies to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy" [see §§87(2)(b) and 89(2)(b)]. In my view, disclosure of the names of applicants for marriage licenses or those who have been granted marriage licenses would not rise to the level of an unwarranted invasion of personal privacy. The court in Gannett referred to an opinion that I prepared and found that such a disclosure "does not equate with the type of personal, confidential, or sensitive information precluding public access."

While the court focused on names of applicants, nowhere was it stated that other items are confidential. The issue, in my view, involves the extent to which disclosure of the records in question would constitute an unwarranted invasion of personal privacy. In Hanig v. State Department of Motor Vehicles (79 NY 2d 106), the issue involved a request for a driver license application that included reference to the existence of or treatment for certain medical disabilities. Even though those items were not medical records or medical histories, the Court affirmed the lower court's denial of access, stating that "it does capture the essence of the exemption in that it encompasses the very sort of detail about personal medical condition that would ordinarily and reasonably be regarded as intimate, private information" (id., 112). Based on the foregoing, the Court considered the nature of the information and whether it could be characterized as intimate. In a similar analysis, it was found that "an individual's educational background, i.e., the level of education attained and the particular institutions attended" must be disclosed, for the court was not "persuaded that a reasonable person of ordinary sensibilities would find if offensive and objectionable to have such information disclosed" [Ruberti, Girvin and Ferlazzo v. Division of State Police, 64 NYS 2d 411, 415 (A.D. 3 Dept. 1996)].

If a special consent is noted on a marriage record, or if such a record includes medical or health information, those items might justifiably be deleted. It is likely in my opinion that other items would be found by a court to constitute an unwarranted invasion of privacy if disclosed to the public, such as social security numbers, ages, occupations, names of fathers and countries of birth, maiden names of mothers and their countries of birth, and whether former spouses are living or deceased. They are largely incidental to the qualifications of individuals to marry. In addition, while I believe that the municipality of residence should be disclosed, the street address of applicants could in my view be withheld as an unwarranted invasion of privacy.

With respect to the "proper purpose" standard appearing in §19 of the Domestic Relations Law, again, I believe that certain aspects of marriage records must be disclosed to any member of the public. The remaining aspects of the records would be available or deniable based on the "proper purpose" standard. By means of analogy, in the case of death records, which are typically exempted from public disclosure under §4174 of the Public Health Law, there are exceptions that authorize disclosure, i.e., "when a documented medical need has been demonstrated" or "when a documented need to establish a legal right or claim has been demonstrated." That kind of justification provides town and city clerks with the flexibility to make judgments regarding the ability, but only upon a showing of a good reason, a "proper purpose", to disclose items which could routinely be withheld on the ground that disclosure would result in an unwarranted invasion of privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Edward F. O'Malley