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September 19, 1997

 

 

 

Mr. Timothy D. Bunn
Deputy Executive Editor
Syracuse Newspapers
Clinton Square
P.O. Box 4915
Syracuse, NY 13221-4915

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,
unless otherwise indicated.

Dear Mr. Bunn:

I have received your letter of August 4 in which you asked that I issue an opinion concerning
access to marriage records.

From my perspective, the contents of those records must generally be disclosed. In this
regard, I offer the following comments.

First, 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.

Second, with respect to marriage records, according to judicial decisions, rights of access
must be determined on the basis of the Freedom of Information Law in conjunction with another
statute, §19 of the Domestic Relations Law. That statute, which is entitled "Records to be kept by
town and city clerks", states 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 an index such information as is
required therein, which book shall be kept and preserved as a part of
the public records of his office."

I do not believe that it could be reasonably suggested that the language quoted above may be
construed to mean that marriage records are confidential. Nevertheless, that appears to be the stance
adopted by many agencies.

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." In my view, disclosure of the names of applicants for marriage licenses or those who have
been granted marriage licenses hardly rises 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." The fact of the issuance of all those other licenses referenced above is a matter of public
record, and I believe that the same conclusion must be reached in the context of your inquiry.
Marriages are, in most instances, social events. To inform their communities about an upcoming or
recent marriage, many people have an announcement published in the local newspaper, often with a
photograph; the event is anything but a secret. Further, if a couple becomes divorced, a record
indicating that they are divorced is available from a county clerk pursuant to §235 of the Domestic
Relations Law. As the Court in the Gannett decision observed, it would be anomalous to suggest that
a record reflective of a divorce must be disclosed, but that a record reflective of a marriage would,
if disclosed, result in an unwarranted invasion of personal privacy.

Representatives of some agencies have suggested, since the request in Gannett involved only
the names of applicants for marriage licenses, that only the names must be disclosed. 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. However, other items, such as dates of
applications or marriages, the addresses of the licensees and similar items could not, in my opinion,
be characterized as intimate personal information that the courts have found to be deniable. Again,
the fact of peoples' marriages and a variety of information about them are readily disclosed by most
people via announcements, references in telephone books, the wearing of rings and a variety of other
details commonly known in our society. In my view, those disclosures typify reasonable people of
ordinary sensibilities, and other than the special consents or health related information referenced
above, I believe that the marriage records that you are seeking must be disclosed.

I note that in a decision concerning access to death records, it was held that a request for the
purpose of routine publication in a newspaper constituted a "proper purpose" and that, therefore, the
municipality was required to disclose [see Rome Sentinel v. Bousledt, 43 Misc. 2d 598, 252 NYS 2d
10 (1964)]. Although the statute regarding death records has been amended since that decision was
rendered, I believe that the essential holding, as it would apply to marriage records, which, again, are
generally available under §19 of the Domestic Relations Law, remains the same as in Rome Seninel.

In sum, the restrictive interpretation by certain agencies regarding the disclosure of marriage
records reflected in the correspondence is, in my view, inconsistent with the Freedom of Information
Law, with §19 of the Domestic Relations Law, and judicial interpretations.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Peter Carucci
Vivian I. Mason