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September 10, 1997

 

 

Mr. Michael S. Rabin
General Counsel
NYC Department for the Aging
2 Lafayette Street
New York, NY 10007-1392

Dear Mr. Rabin:

I appreciate receiving a copy of your determination of an appeal by Mr. Christopher K.
Heaney of NYNEX rendered on August 4 pursuant to the Freedom of Information Law. In brief,
NYNEX requested a list the names of executive directors of senior centers, and you upheld an initial
denial of access on the basis of §89(2)(b)(iii) of the statute.

I respectfully disagree with your determination and ask that you reconsider your response.
In this regard, I offer the following comments.

First, 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 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 NY 2d
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)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there
is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the
use of the records, including the potential for commercial use, is in my opinion irrelevant; when
records are accessible, once they are disclosed, the recipient may do with the records as he or she sees
fit.

Second, the only exception to the principles described above involves 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)].

Several judicial decisions indicate that the provisions cited above pertaining to the protection
of personal privacy cannot validly be asserted when records identify commercial entities or persons
acting in business capacities. In a decision rendered by the Court of Appeals that focuses on those
provisions, the court referred to the authority to withhold "certain personal information about private
citizens" [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York
City Police Department, 73 NY 2d 92 (1989)]. In another decision, the opinion of this office was
cited and confirmed, and the court held that "the names and business addresses of individuals or
entities engaged in animal farming for profit do not constitute information of a private nature, and this
conclusion is not changed by the fact that a person's business address may also be the address of his
or her residence" [American Society for the Prevention of Cruelty to Animals v. New York State
Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In a case
concerning records pertaining to the performance of individual cardiac surgeons, the court granted
access and cited an opinion prepared by this office in which it was advised that the information should
be disclosed since it concerned professional activity licensed by the state (Newsday Inc. v. New York
State Department of Health, Supreme Court, Albany County, October 15, 1991).

In short, I do not believe that the provisions in the Freedom of Information Law pertaining
to the protection of personal privacy could be asserted to withhold the record in question, for it
involves the names and addresses of persons in their business capacities; there is nothing intimate or
personal about it.
If you would like to discuss the matter, please feel free to contact me. I hope that I have been
of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Christopher K. Heaney