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February 11, 1998


M E M O R A N D U M



TO: Hank Greenberg

FROM: Bob Freeman

SUBJECT: Access to Marriage Records


I thank you for sharing your memorandum to Peter Carucci on the
subject of access to marriage records. I believe that we can agree on a variety
of points, and in an effort to reach a meeting of the minds, I offer the
following observations and suggestions.

From my perspective, the difficulty involves harmonizing three
standards: the presumption of access in the Freedom of Information Law, the
ability to withhold records under that statute to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy", and the
"proper purpose" standard in §19 of the Domestic Relations Law.

Commercial or Fund-raising Purposes

Before considering particular elements of marriage records, I think
that we can agree that a request for a commercial or fund-raising purpose
always involves an unwarranted invasion of personal privacy and never
constitutes a proper purpose. 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].

In my view, whether an applicant seeks a list of marriages or a single
marriage record, the response should be the same if the request is made for a
commercial or fund-raising purpose. Very simply, in that kind of situation,
the request could justifiably be denied based on the privacy provisions in the
Freedom of Information Law or the proper purpose standard in the Domestic
Relations Law.

"Zones" of Accessible and Deniable Information

Accessible Information

For the remainder of this commentary, it should be assumed that
requests are not made for commercial or fund-raising purposes. With that
issue aside and perhaps resolved, I hope that we can agree that some elements
of marriage records are always public, and that others would, if disclosed,
result an unwarranted invasion of personal privacy.

It was established in Gannett Co., Inc. v. City Clerk's Office, City of
Rochester [596 NYS2d 968, aff'd 197 AD2d 919 (1993)] that the names of
applicants for marriage licenses are accessible, and that disclosure would not
constitute an unwarranted invasion of privacy or be contrary to the proper
purpose standard. The court did not address the disclosure of other items,
and I do not believe that the name of an applicant is the only item within a
marriage record that must routinely be disclosed.

The dates of validity of licenses indicate to the public and to
government authorities the time within which certain activities may legally be
performed, i.e., practicing law or medicine, teaching, possessing or carrying
a firearm, hunting, fishing, etc. I believe that the same should be true in the
case of marriage licenses. When a marriage begins or ends should be public,
and the court in Gannett inferred that such a result should be reached with
respect to marriage records. The decision referred with apparent favor to a
contention offered by petitioner "that a final judgment of divorce dissolving
a marriage is publicly available, as is the identity of other selected licensees
and that common sense would dictate a similar result for the release of
marriage applicants..." In short, the fact of a marriage and its duration should
in my view be public, as is the fact of a divorce pursuant to §235 of the
Domestic Relations Law..

Another element of the record that I believe should routinely be
disclosed is the municipality of an applicant's residence. In most instances, at
least one member of a couple applying for a marriage license resides in the
municipality in which the license is sought. Therefore, disclosure of names
alone would indicate that one of the two likely lives (or perhaps lived) in a
certain municipality. Again, and as suggested by the court in Gannett,
disclosure of that item would "not equate with the type of personal,
confidential, or sensitive information precluding public access, or which would
constitute an 'unwarranted invasion of personal privacy.'"

In short, I do not believe that reasonable people or the courts would
find that disclosure of the kinds of items described above would be
unreasonable, unwarranted or improper.

It is suggested with respect to those items that it might be worthwhile
to consider the guidance offered by the courts in the cases dealing with lists
of names and addresses. It may not be appropriate or efficient to ask in every
instance the purpose of a request for those basic, largely innocuous items.
But it would be appropriate in my view to ask for a written certification or
statement that a request for those items does not involve a commercial or
fund-raising purpose. It would be easy to devise a simple form and to suggest
to local clerks that requests involving clearly public items by the news media
and others should be routinely granted, so long as the requests are not made
for a commercial or fund-raising purpose.

Deniable Information

You referred in your memorandum to a variety of other items, 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. With respect to those and perhaps
other items, it is likely in my view that it would be determined judicially that
disclosure would constitute an unwarranted invasion of personal privacy.
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.

As in the case of certain items being routinely disclosed (unless, of
course, the request is made for a commercial or fund-raising purpose), the
items referenced in the preceding paragraph might routinely be withheld.

Proper Purpose

In conjunction with the foregoing, if it can be agreed that certain items
will routinely be public and that others can routinely be withheld, the proper
purpose standard becomes important only with respect to the latter group.
The age, the country of birth and similar items might be withheld as a matter
of course, unless a proper purpose can be demonstrated. 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 would provide 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.

In essence, I am suggesting three zones regarding access. The first
pertains to items that would always be public; the second to items which
would always, if disclosed, result in an unwarranted invasion of privacy, and
the third to items that would ordinarily be withheld to protect privacy, but
which could be disclosed upon a showing of a proper purpose. Again,
another absolute would pertain to the ability to withhold when a request is
made for a commercial or fund-raising purpose.

If there is an accord, to make life a little easier for the clerks, it
suggested that a new form be prepared to enable them to readily segregate the
routinely public from the routinely deniable information.

I hope that you find the foregoing to be constructive, and I would
appreciate your reaction to it.

Thanks.


RJF:jm


NOTE: The New York State Department of Health has agreed to use the
parameters described in this memorandum as the basis for its consideration of
requests for marriage records.