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June 10, 1998

 

Mr. Bernard J. Morosco, CEO
Village of Frankfort
1603 Girard Street
Utica, NY 13501

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. Morosco:

I have received your letter of May 17 in which you raised questions relating to the
Freedom of Information Law.

In your capacity as Code Enforcement Officer for the Village of Frankfort, you wrote
that you discovered that a non-profit agency performed "weatherization work without
building permits as required under local and state law." When you sought "a list of
addresses and type of work performed" within your enforcement area, you were informed
that disclosure "would be violating privacy of individuals (pertaining to them as
low-income)." Having spoken with an attorney for the Division of Housing and
Community Renewal, it was reiterated that the information could be withheld in order to
protect personal privacy.

Since building permits are required, and since "[l]ow income families have the same
entitlement to safe installation of equipment as do higher income families", you have
questioned the propriety of the rejection of your request. In this regard, I offer the
following comments.

By way of background, 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. Relevant under the circumstances is
º87(2)(b), which enables an agency to withhold records or portions thereof the disclosure
of which constitute "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 that statute enable government to
prevent disclosures concerning the personal or intimate details of individuals' lives. As
such, with respect to grant, loan or other programs in which income level is a factor in
determining participation, often the question involves the extent to which disclosure would
constitute an unwarranted invasion of personal privacy.

From my perspective, a disclosure that permits the public determine the general income
level of a participant in such a program based upon income eligibility would likely
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, 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.,
section 697, Tax Law). As such, it would appear that the Legislature felt that disclosure
of records concerning income would constitute an improper or "unwarranted" invasion of
personal privacy, and, therefore, that the information sought could be withheld from the
public under the Freedom of Information Law.

Also pertinent is the Personal Privacy Protection Law. That statute pertains to records
maintained by state agencies that identify individuals. In brief, under º96(1) of that statute,
a state agency cannot disclose personally identifiable information, except pursuant to an
exception appearing in that provision. Nevertheless, if you are seeking information not as
a member of the public under the Freedom of Information Law, but rather as a
government official acting in the performance of your official duties, it appears that the
Division of Housing and Community Renewal could choose to disclose the information to
you under º96(1)(d) of the Personal Privacy Protection Law. That provision permits a
state agency to disclose personal information:

"to officers or employees of another governmental unit if each
category of information sought to be disclosed is necessary for the
receiving governmental unit to operate a program specifically
authorized by statute and if the use for which the information is
requested is not relevant to the purpose for which it was collected..."

While it is likely that the Utica Community Action Agency is required to disclose its
records in accordance with the Freedom of Information Law, that entity is not a state
agency. Therefore, the Personal Privacy Protection Law would not serve as a barrier to
its disclosure of records to you. Although you may not have the right under the Freedom
of Information Law to obtain the information in question from that agency due to the
ability of the agency to protect personal privacy, frequently, in the spirit of cooperation,
entities will share information when it is clear that it is being sought in the performance of
one's official governmental duties.

Lastly, you asked whether the Division of Housing and Community Renewal may
refuse to mail photocopies of records and insist that you travel to Albany to view and copy
records. In this regard, nothing in the Freedom of Information Law or the regulations
promulgated by the Committee on Open Government (21 NYCRR Part 1401) specifically
deals with requests made and responses given by mail. However, due to the size of the
state, the inability of some people to physically travel to locations where records are kept,
the reality that many people work and cannot travel to those locations, and in view of the
intent of the Law, I believe that is implicit that agencies must respond to requests by mail.
However, in addition to the fee for photocopying, an agency could in my view also charge
for the cost of postage.

I hope that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:jm

cc: Utica Community Action Agency
David Diamond