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FOIL-AO-15608

November 1, 2005

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

Dear

We are in receipt of your July 30, 2005 request for an advisory opinion concerning the application of the Freedom of Information Law to a list of names and addresses maintained by the Village of Floral Park.

Based on the information provided, you have been denied access to the Aircraft Noise Abatement Mailing List on the ground that the Village Records Access Officer is "unable to determine whether an unwarranted invasion of privacy will result from its disclosure."

It is our opinion that because the Village has denied access to the list, it has determined that disclosure would result in an unwarranted invasion of personal privacy. In that regard, we offer the following comments.

First, 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 section 87(2)(a) through (i) of the Law.

As a general matter, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

The only exception to the principles described above involves a provision pertaining to the protection of personal privacy. By way of background, §87(2)(b) of the Freedom of Information Law permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) of the Law provides a series of examples of unwarranted invasions of personal privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes" [§89(2)(b)(iii)].

As indicated earlier, the status of an applicant and the purposes for which a request is made are irrelevant to rights of access, and an agency cannot ordinarily inquire as to the intended use of records. Due to the language of §89(2)(b)(iii), however, rights of access to a list of names and addresses, or equivalent records, may be contingent upon the purpose for which a request is made [see Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162 (1983)].

In a case involving a list of names and addresses in which the agency inquired as to the purpose of which the list was requested, it was found that an agency could make such an inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this office in which it was advised that an agency may appropriately require that an applicant for a list of names and addresses provide an assurance that a list of names and addresses will not be used for commercial or fund-raising purposes. In that decision, it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the record does it appear that petitioner intends to use the information sought for commercial or fund-raising purposes. However, the reason for that deficiency in the record is that all efforts by respondents to receive petitioner's assurance that the information sought would not be so used apparently were unsuccessful. Without that assurance the respondents could reasonably infer that petitioner did want to use the information for commercial or fund-raising purposes."

In addition, it was held that:

"[U]nder the circumstances, the Court finds that it was not unreasonable for respondents to require petitioner to submit a certification that the information sought would not be used for commercial purposes. Petitioner has failed to establish that the respondents denial or petitioner's request for information constituted an abuse of discretion as a matter of law, and the Court declines to substitute its judgement for that of the respondents" (id.).

In this instance, since you apparently provided assurances that the list would not be used for commercial or fund-raising purposes, we believe that the list must be disclosed. Such a list would not divulge intimate personal information about those whose names are included. When a list of names and addresses pertains to individuals bearing certain characteristics (i.e., race or ethnicity, age, medical condition, interest in certain health related matters, etc.), disclosure of names associated with those characteristics would likely constitute an unwarranted invasion of personal privacy, irrespective of the intended use of a list. Nevertheless, there is no indication that the list that you seek would identify individuals by means of an association with a characteristic of an intimate or highly personal nature. In short, there appears to be no basis for withholding the list.

Second, the only other example of an unwarranted invasion of personal privacy relevant to the facts presented is §89(2)(b)(iv), which states that an unwarranted invasion of privacy includes:

"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..."

In construing that provision, it has been found that its language is conjunctive. As stated by the state’s highest court, the Court of Appeals, in Gannett Co. Inc. v. County of Monroe, which considered the same provision in the original Freedom of Information Law, "the exception...is available only if there is both proof of such hardships and it is established that the records sought are not relevant or essential to the ordinary work of the agency or municipality. The latter branch of this conjunctive requirement cannot be met in this instance" [emphasis added by court, 45 NY 2d 954, 955 (1978)]. Similarly, in another case that involved §89(2)(b)(iv), the court cited the Gannett decision and found that the application of that provision required that the "test" of finding that disclosure would result in personal or economic hardship and that the information was not relevant to the work of the agency could not be met. Therefore, it was held that the records were required to be made available [Flatbush Development Corp. v. Insurance Department, Sup. Ct., New York County, NYLJ, October 7, 1983].

In our opinion, whether a person supports the abatement of aircraft noise hardly represents an intimate or personal detail that could, if disclosed, result in personal or economic hardship. Moreover, the records appear to be relevant to the work of the agency. Consequently, again, we believe the list must be disclosed.

I trust this meets with your request. Should you have any further questions, please contact me directly.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

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