NY.gov Portal State Agency Listing

 

March 24, 1998




Hon. George L. Cooke
Sullivan County Clerk
Sullivan County Government Center
Monticello, NY 12701

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 Mr. Cooke:

I have received your letter of March 20. You have asked whether, in
your capacity as Sullivan County Clerk, you "are prohibited from accepting
any documents with a Social Security number included for public view." You
also questioned whether a record that includes a social security number may
be "exposed for public view" without the consent of individual to whom the
record pertains.

In this regard, I know of no law that would restrict your ability to
accept records into your custody. Further, the Freedom of Information Law
deals generally with the obligation to disclose and the ability to withhold
records; it is silent with respect to the kinds of records that may come into the
possession of government.

It is noted that it has been established through judicial interpretation
that an entity of local government is not prohibited from disclosing social
security numbers, even when the subjects of the records objected to
disclosure. In Seelig v. Sielaff [200 AD2d 298 (1994)], the lower court
enjoined a New York City agency from releasing the social security numbers
of correction officers without their written consent pursuant to the Personal
Privacy Protection Law. While the Appellate Division agreed that disclosure
of social security numbers would result in an unwarranted invasion of
correction officers' privacy, the Court unanimously reversed and vacated the
judgment because the agency involved is an entity of local government and,
therefore, is not subject to the Personal Privacy Protection Law or prohibited
from disclosing social security numbers. Specifically, it was found that:

"The injunctive relief granted by the IAS Court
was based upon Public Officers Law §92 (1),
part of this State's Personal Privacy Protection
Law. That law by its own terms excepts the
judiciary, the State Legislature, and 'any unit
of local government' from its purview.
Consequently, the relief granted against the
respondents was improper" (id., 299).

I note that the same provision specifically excludes the judiciary from the
coverage of the Personal Privacy Protection Law.

In short, while a state agency that is subject to the Personal Privacy
Protection Law is obliged to protect against disclosures to the public that
would constitute an unwarranted invasion of personal privacy [see Freedom
of Information Law, §§87(2)(b) and 89(2); Personal Privacy Protection Law,
§96(1), neither an entity of local government nor a court is required to do so.

Lastly, it is emphasized that the Freedom of Information Law is
permissive. Although an agency may withhold records in accordance with the
grounds for denial appearing in §87(2), the Court of Appeals has held that the
agency is not obliged to do so and may choose to disclose. As stated in that
unanimous decision: "...while an agency is permitted to restrict access to those
records falling within the statutory exemptions, the language of the exemption
provision contains permissive rather than mandatory language, and it is within
the agency's discretion to disclose such records, with or without identifying
details, if it so chooses" [Capital Newspapers v. Burns, 67 NY2d 562, 567
(1986)].

I hope that I have been of assistance. Should any further questions
arise, please feel free to contact me.

Sincerely,



Robert J. Freeman
Executive Director

RJF:jm