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August 5, 1997

Ms. Elizabeth M. Vandemark
P.O. Box 505
Grand Central Station
New York, NY 10163-0505

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 Ms. Vandemark:

I have received your letter of July 7, as well as the
correspondence attached to it.

You have sought assistance in obtaining dog license records
concerning dogs at a certain address from the New York City
Department of Health. The Department denied access on the ground
that disclosure would result in "an unwarranted invasion of
personal privacy" pursuant to §§87(2)(b) and 89(2)(b) of the
Freedom of Information Law. Further, although you appealed the
denial on May 8, as of the date of your letter to this office, you
had not received a response to your appeal.

From my perspective, the records sought must be disclosed. In
this regard, I offer the following comments.

As a general matter, 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 §87(2)(a) through (i) of the Law.

It has consistently been advised that licenses and similar,
related kinds of records are available to the public, even though
they identify particular individuals. From my perspective, various
activities are licensed due to some public interest in ensuring
that individuals or entities are qualified to engage in certain
activities, such as teaching, selling real estate, owning firearms,
practicing law or medicine, etc., as well as owning a dog and
ensuring that the dog is cared for appropriately. I believe that
licenses and similar records are available, for they are intended
to enable the public to know that an individual has met appropriate
requirements to be engaged in an activity that is regulated by the
state or in which the state has a significant interest.

The standard in the Freedom of Information Law pertaining to
the protection of privacy in my opinion is flexible and agency
officials must, in some instances, make subjective judgments when
issues of privacy arise. However, it is clear that not every item
within a record that identifies an individual may be withheld.
Disclosure of intimate details of peoples' lives, such as medical
information, one's employment history and the like, might, if
disclosed, constitute an unwarranted invasion of personal privacy;
nevertheless, other types of personal information maintained by an
agency, particularly those types of information that are relevant
to an agency's duties, would if disclosed often result in a
permissible rather than an unwarranted invasion of personal
privacy.

In this instance, if I correctly understand the matter, the
records would be available, for disclosure would, in my opinion,
result in a permissible rather than an unwarranted invasion of
personal privacy.

Names and addresses of licensees have been found to be
available in Kwitny v. McGuire [53 NY 2d 968 (1981)] involving
pistol licenses, American Broadcasting Companies v. Siebert [442
NYS 2d 855 (1981)] involving licensed check cashing businesses,
Herald Company v. NYS Division of the Lottery [Supreme Court,
Albany County, November 16, 1987] involving licensed lottery agents
and New York State Association of Realtors, Inc. v. Paterson
[Supreme Court, Albany County, July 15, 1981] involving licensed
real estate brokers and salespeople. In short, I believe that
records identifiable to licensees (or their dogs) are generally
accessible to the public.

The only instance in which the kinds of records that you are
seeking might properly be withheld would pertain to §89(2)(b)(iii),
which states that an unwarranted invasion of personal privacy
includes the "sale or release of lists of names and addresses if
such lists would be used for commercial or fund-raising purposes."
It does not appear that your request involves commercial or fund-raising activity.

Lastly, with respect to your appeal, I note that §89(4)(a) if
the Freedom of Information Law states in relevant part that:

"...any person denied access to a record may within
thirty days appeal in writing such denial to the head,
chief executive, or governing body, who shall within ten
business daus of the receipt of such appeal fully explain
in writing to the person requesting the record the
reasons for further denial, or provide access to the
record sought."

It has been held that when an appeal is made but a
determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to the Department of Health.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Wilfredo Lopez
Patricia J. Caruso