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July 8, 1998

Ms. Janet M. Roberts
895 Best Road
West Sand Lake, NY 12196

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 Ms. Roberts:

I have received your letter of June 22 and related materials. You have sought an advisory opinion concerning
a denial of access to a record by the Department of Motor Vehicles.

According to the correspondence, you requested from the Department a certain "scofflaw report" sent to the
Department by the Albany City Court. The Department denied access, citing §89(2)(b)(iii) of the Freedom of
Information Law. In your appeal, you contended that scofflaw reports identify those "who have been found guilty in
traffic court, which is open to the public and often times their violations published in the newspaper." You also expressed
the view that you have a right to the report "for whatever reason" and that the public has the right "to ensure
accountability by the government."

If I understand the matter accurately, the record in question must be disclosed. In this regard, I offer the
following comments.

First, as a general matter, the purpose for which a request is made and the intended use of records are irrelevant
in determining rights of access to records. In short, it has been determined that if a record is accessible under the
Freedom of Information Law, it must be made equally available to any person, irrespective of one's status or interest
[Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976); M. Farbman & Sons v. New York
City Health and Hosps. Corp., 62 NY 2d 75 (1984) ]. There is an exception to that principle, and it will be considered
later.

Second, 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. In my view, one of the grounds for denial is relevant to an analysis of
rights of access. Specifically, §87(2)(b) states that an agency may withhold records to the extent that disclosure would
result in "an unwarranted invasion of personal privacy". In addition, §89(2)(b) includes a series of examples of
unwarranted invasions of privacy.

In my opinion, when a government agency has determined that an individual has engaged in a violation of law,
a record identifying that person must be disclosed[Johnson Newspaper Corp. v. Stainkamp, 94 AD 2d 825, 61 NY 2d
958 (1984)]. Similarly, the imposition of a penalty indicates that a final agency determination has been made, and a
record so indicating would be available [see Freedom of Information Law, §87(2)(g)(iii)]. In short, I believe that records
identifying those found to have violated the law or against whom penalties have been imposed must be disclosed, for
disclosure in those instances would result in a permissible rather than an unwarranted invasion of personal privacy.

The provision cited by the Department as the basis for a denial of access represents the exception to the rule that
the interest of an applicant for records has no bearing on rights of access. Section 89(2)(b)(iii) states that an unwarranted
invasion of personal privacy includes the disclosure of a list of names and addresses if the list would be used for
"commercial or fund-raising purposes". Consequently, if the names and addresses of scofflaws would be used for a
commercial or fund-raising purpose, I believe that the Department could justifiably deny access. However, if that is not
your intent, the names and addresses must in my opinion be disclosed.

Lastly, although the courts and court records are not subject to the Freedom of Information Law, most court
records are available under other provisions of law (see e.g., Judiciary Law, §255). If the record sent to the Department
of Motor Vehicles is also maintained by a court, I believe that you could also acquire a copy from the court.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Alexandra K. Sussman
George Christian