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February 12, 1998

Hon. John J. Flanagan
Member of the Assembly
75 Woodbine Ave
Northport, NY 11768

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 Assemblyman Flanagan:

I have received your letter of February 3, which reached this office yesterday.

You have sought assistance on behalf of a constituent, Mr. Thomas J. Kehoe, who has
attempted without success to obtain "the names of commercial fisherman who received state
grant monies to assist them in the start-up costs associated with oyster farming." Despite
denials of his requests by the Town of East Hampton and Cornell Cooperative Extension, you
expressed the view that the request should have been granted, for the information sought is
"not of a personal nature."

I agree with your contention. Before offering an analysis of rights of access, however,
I note that among the attachments to your correspondence is a letter addressed to this office
by Mr. Kehoe on January 9. Having reviewed our log of incoming mail, for reasons
unknown, his letter never reached the Committee. If it had, a response would already have
been prepared.

As you are aware, the Freedom of Information Law pertains to agency records, and
§86(3) of that statute defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one
or more municipalities thereof, except the judiciary or the state
legislature."

In this regard, the response to Mr. Kehoe by the Director of Cornell Cooperative
Extension referred to federal regulations pertaining to the distribution of mailing lists. From
my perspective, the federal law to which he alluded has no relevance to the matter, for Cornell
Cooperative Extension is an "agency" subject to the requirements of the New York Freedom
of Information Law.

According to §224(8)(b) of the County Law, a county extension service association
is a "subordinate governmental agency" whose organization and administration are "approved
by Cornell University as agent for the state." Moreover, in a recent unanimous decision
rendered by the Appellate Division, it was held that the records of Cornell University
pertaining to its four "statutory colleges", arms of the State University of New York, are
subject to the State's Freedom of Information Law [Stoll v. New York State College of
Veterinary Medicine at Cornell University, 664 NYS2d 851, __ AD2d __ (1997)]. The
provision of the County Law cited above refers specifically to the extension service and the
"educational programs of the New York State College of Agriculture and Life Sciences and
the New York State College of Human Ecology at Cornell University", both of which are
statutory colleges. As such, again, the provision of the Freedom of Information Law, not
federal regulations, govern in this instance.

In brief, 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.

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 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)].

Based on the foregoing, 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.

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)].

The provision quoted above represents what might be viewed as an internal conflict in the
law. As indicated earlier, the status of an applicant or the purposes for which a request is
made are irrelevant to rights of access, and an agency cannot inquire as to the intended use
of records. However, due to the language of §89(2)(b)(iii), 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); Federation of New York State Rifle and Pistol Clubs, Inc. v.
New York City Police Dept., 73 NY 2d 92 (1989); Goodstein v. Shaw, 463 NYS 2d 162
(1983)].

There are several judicial decisions, both New York State and federal, that pertain to
records about individuals in their business or professional capacities and which indicate, as
you suggested, that the records are not of a "personal nature." For instance, one involved a
request for the names and addresses of mink and ranch fox farmers from a state agency
(ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County,
May 10, 1989). In granting access, the court relied in part and quoted from an opinion
rendered by this office in which it was advised that "the provisions concerning privacy in the
Freedom of Information Law are intended to be asserted only with respect to 'personal'
information relating to natural persons". 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. In interpreting the
Federal Freedom of Information Law Act (5 USC 552), the
Federal Courts have already drawn a distinction between
information of a 'private' nature which may not be disclosed,
and information of a 'business' nature which may be disclosed
(see e.g., Cohen v. Environmental Protection Agency, 575 F
Supp. 425 (D.C.D.C. 1983)."

In another more recent decision, Newsday, Inc. v. New York State Department of Health
(Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department
of Health concerning the performance of open heart surgery by hospitals and individual
surgeons was requested. Although the Department provided statistics relating to surgeons,
it withheld their identities. In response to a request for an advisory opinion, it was advised
by this office, based upon the New York Freedom of Information Law and judicial
interpretations of the federal Freedom of Information Act, that the names should be disclosed.
The court agreed and cited the opinion rendered by this office.

Like the Freedom of Information Law, the federal Act includes an exception to rights
of access designed to protect personal privacy. Specifically, 5 U.S.C. 552(b)(6) states that
rights conferred by the Act do not apply to "personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In
construing that provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public
disclosure of 'intimate details of their lives, whether the
disclosure be of personnel files, medical files or other similar
files'. Board of Trade of City of Chicago v. Commodity
Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural
Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73,
77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845
(4th Cir. 1973). Although the opinion in Rural Housing stated
that the exemption 'is phrased broadly to protect individuals
from a wide range of embarrassing disclosures', 498 F.2d at
77, the context makes clear the court's recognition that the
disclosures with which the statute is concerned are those
involving matters of an intimate personal nature. Because of
its intimate personal nature, information regarding 'marital
status, legitimacy of children, identity of fathers of children,
medical condition, welfare payment, alcoholic consumption,
family fights, reputation, and so on' falls within the ambit of
Exemption 4. Id. By contrast, as Judge Robinson stated in the
Chicago Board of Trade case, 627 F.2d at 399, the decisions
of this court have established that information connected with
professional relationships does not qualify for the exemption"
[Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573
(1980)].

In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets,
supra, it was stated pointedly that: "The privacy exemption does not apply to information
regarding professional or business activities...This information must be disclosed even if a
professional reputation may be tarnished" (supra, 429). Similarly in a case involving
disclosure of the identities of those whose grant proposals were rejected, it was held that:

"The adverse effect of a rejection of a grant proposal, if it
exists at all, is limited to the professional rather than personal
qualities of the applicant. The district court spoke of the
possibility of injury explicitly in terms of the applicants'
'professional reputation' and 'professional qualifications'.
'Professional' in such a context refers to the possible negative
reflection of an applicant's performance in 'grantsmanship' -
the professional competition among research scientists for
grants; it obviously is not a reference to more serious
'professional' deficiencies such an unethical behavior. While
protection of professional reputation, even in this strict sense,
is not beyond the purview of exemption 6, it is not at its core"
[Kurzon v. Department of Health and Human Services, 649
F.2d 65, 69 (1981)].

The standard in the New York Freedom of Information Law, as in the case of the
federal Act, is subject to conflicting points of view, and reasonable people often differ with
respect to issues concerning personal privacy. In this instance, although the information in
question would be identifiable to particular individuals, it would pertain solely to their
business capacity. Unlike an individual's social security number or medical records identifiable
to patients, which would involve unique and personal details of people's lives, the records in
question are not "personal" in my opinion; rather, again, they deal with functions carried out
by individuals business in their capacities certified to teach at their business addresses.

In short, in my opinion and as indicated in the decisions cited above, the exception
concerning privacy does not extend to the kind of information at issue. If that is so,
disclosure would not constitute an unwarranted invasion of personal privacy, and the records
should be disclosed.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to the Town of East Hampton and
Cornell Cooperative Extension, and to Mr. Kehoe.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Thomas J. Kehoe
Cynthia Shea
William B. Lacy