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July 14, 1998

Mr. H. Detrick
1 Pennington-Lawrenceville Road
Pennington, NJ 08534

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. Detrick:

I have received your letter of June 23 in which you sought assistance in obtaining
military discharge records from the Westchester County Clerk. You wrote that you were
informed by that agency that you "would have to produce a signed permission slip from the
parties whom the records concern" in order to obtain copies.

In this regard, by way of background, §250 of the Military Law, which has remained
unchanged for some forty years, states that any certificate of honorable discharge issued after
April 6, 1917 "may be recorded in any one county, in the office of the county clerk, and when
so recorded shall constitute notice to all public officials of the facts set forth therein." As
such, although there is no requirement that they do so, veterans may file certificates of
honorable discharge with county clerks. The more recent filings, perhaps those within the last
twenty years, include social security numbers.

A veteran who chooses to file a certificate of honorable discharge with a county clerk
has the ability direct that it be sealed pursuant to §79-g of the Civil Rights Law. That
provision states that:

"a. Notwithstanding the provisions of any general, special or
local law to the contrary, any person filing a certificate of
honorable discharge in the office of a county clerk shall have
the right to direct the county clerk to keep such certificate
sealed.

b. Thereafter, such certificate shall be made available to the
veteran, a duly authorized agent or representative of such
veteran or the representative of the estate of a deceased
veteran but shall not be available for public inspection."

Although the Freedom of Information Law is based on a presumption of access, the first
ground for denial would authorize county clerks to shield from the public certificates or
honorable discharge that have been sealed based on the direction to do so by a veteran.
Section 87(2)(a) pertains to records that are "specifically exempted from disclosure by state
or federal statute." Section 79-g of the Civil Rights Law is such a statute, and if direction to
seal is given by a veteran, a county clerk would be prohibited from disclosing,
notwithstanding the provisions of the Freedom of Information Law.

When there is no direction by a veteran to seal a certificate of honorable discharge,
that record, like all others, would be subject to rights conferred by the Freedom of
Information Law. As I understand the content of such a record, the only item that could be
withheld would be the social security number. It has been held that local government
agencies may withhold social security numbers on the ground that disclosure would constitute
"an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)],
but that they not required to do so [Seelig v. Sielaff, 201 A.D. 2d 298 (1994)]. As a general
matter, even though a local government agency, i.e., a county, may withhold records or
portions thereof in appropriate circumstances, it is not obliged to do so, because the Freedom
of Information Law is permissive. Therefore, while I believe that a local government agency
may delete social security numbers from records that are otherwise available, the Freedom of
Information Law would not prohibit a county clerk from disclosing certificates of honorable
discharge in their entirety, unless those records are sealed under §79-g of the Civil Rights
Law.

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, the State's highest court,
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)].

The only exception to the principles described above relates to the protection of
personal privacy. As indicated earlier, §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 suggested above, the status of an applicant and the purposes for which a request is
made are irrelevant to rights of access, and an agency cannot ordinarily 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); Goodstein v. Shaw, 463 NYS 2d 162
(1983)]. If it is determined that certificates of honorable discharge are requested for
commercial purposes, it appears that county clerks could justifiably deny the request.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Westchester County Clerk