April 8, 1998
Mr. Daniel S. Hyman
87 Lackawanna Trail
Montebello, NY 10901
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
Dear Mr. Hyman:
I have received your letter of March 23, as well as the correspondence attached to it.
According to your letter, you reside in an affordable housing complex in the Village of
Montebello, and you wrote that owners of properties within the complex are permitted to
sell their property only to a person "on an official list, approved and maintained by the
Village..." In response to a request identifying those on the waiting list, you were
informed that "since there are income limitations to purchase a unit in this development,
someone viewing the list would learn the income limitations of those on it." You have
sought assistance in obtaining the list.
If I understand the matter accurately, the denial of access by the Village would, in my
view, have been consistent with law. In this regard, I offer the following comments.
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
º87(2)(a) through (i) of the Law.
Of relevance under the circumstances is º87(2)(b) of the Freedom of Information Law,
which enables an agency to withhold records or portions of records the disclosure of
which would result in "an unwarranted invasion of personal privacy." While I believe that
the Freedom of Information Law is intended to ensure that government is accountable, the
privacy provisions of the Law in my view enable government to prevent disclosures
concerning the personal or intimate details of individuals' lives. If, for example, applicants
for housing must meet certain age or income requirements, it is likely, in my opinion, that
a court would determine the names of applicants could be withheld. From my perspective,
a disclosure that permits the public to determine the general income level of persons who
apply for housing would constitute an unwarranted invasion of personal privacy, for such
a disclosure would indicate that a particular individual has an income or economic means
below a certain level. In some circumstances, individuals might be embarrassed by such a
disclosure. Further, by means of analogy, the New York State Tax Law contains
provisions that require the confidentiality of records reflective of the particulars of a
person's income or payment of taxes (see e.g., º697, Tax Law).
In short, if indeed there is an income qualification and only those persons whose
income is below is certain level are identified on the list of your interest, I would agree
with the Village's contention that disclosure would constitute an unwarranted invasion of
personal privacy and that the list may be withheld.
I hope that the foregoing enhances your understanding of the matter and that I have
been of assistance.
Robert J. Freeman
cc: Hon. Kathryn Ellsworth, Mayor