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July 21, 1998

Mr. Jeffrey K. Branch
P.O. Box 61
Saranac Lake, NY 12983

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. Branch:

I have received your recent undated letter, which reached this office on July 10. You referred
to an appeal sent to the Committee on Open Government on June 2 concerning a denial of a request
for records of the Village of Lake Placid and indicated that you had not received a response from the
Committee.

In this regard, as a general matter, this office does not prepare responses to the hundreds of
appeals that it annually receives. The reason for refraining from commenting on appeals is that
determinations following appeals frequently result in disclosures reflective of compliance with law.
In other instances, denials of access by agencies may be justified. In those cases, there is generally
no need to comment.

With respect to the substance of the matter, you wrote in your appeal, which is also undated,
that the records withheld pertain to the to the Village Electric Department and involve "the rates
charged per kilowatt-hour to all business and organizations, both public and private, and the amount
of and length of, all delinquencies over the last four months for business and organizations, both
public and private." In denying access, the Village Clerk wrote that you could review the list of
commercial electric customers, "but that information regarding past due accounts, including amounts
past due and length of delinquency would not be made available..." for "[d]isclosure of this credit
history information concerning customers...would constitute an unwarranted invasion of personal
privacy."

I disagree with the Clerk's conclusion and offer the following comments.

First, 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 §87(2)(a) through (i) of the
Law.

The basis for denial upon which the Clerk relied, §87(2)(b), authorizes an agency to withhold
records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy."
In addition, §89(2)(b) contains a series of examples of unwarranted invasions of personal privacy, the
first of which includes reference to "credit histories."

From my perspective and based upon judicial interpretations, §87(2)(b) is intended to pertain
to natural persons, not entities or persons acting in business capacities. In a decision rendered by the
State's highest court, the Court of Appeals, that focuses upon the privacy provisions, the court
referred to the authority to withhold "certain personal information about private citizens" [see Matter
of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York City Police
Department, 73 NY 2d 92 (1989)]. In another decision, the opinion of this office was cited and
confirmed, and the court held that "the names and business addresses of individuals or entities
engaged in animal farming for profit do not constitute information of a private nature, and this
conclusion is not changed by the fact that a person's business address may also be the address of his
or her residence" [American Society for the Prevention of Cruelty to Animals v. New York State
Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). More
recently, in a case concerning records pertaining to the performance of individual cardiac surgeons,
the court granted access and cited an opinion prepared by this office in which it was advised that the
information should be disclosed since it concerned professional activity licensed by the state
(Newsday Inc. v. New York State Department of Health, Supreme Court, Albany County, October
15, 1991).

In short, I do not believe that the provisions in the Freedom of Information Law pertaining
to the protection of personal privacy could be asserted to withhold records pertaining to entities other
than natural persons. On the contrary, since the records sought relate to commercial users of
electricity, I do not believe that any of the grounds for denial would be applicable.

Lastly, you asked "what further action [you] can take." In this regard, while advisory opinions
rendered by this office are not binding, it is my hope that they are educational and persuasive. In an
effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of
this opinion will be forwarded to Village officials so that they might reconsider the denial of your
request. If the Village chooses not to disclose notwithstanding the transmission of this opinion, your
remedy would involve the initiation of a lawsuit under Article 78 of the Civil Practice Law and Rules.
I note that when such a proceeding is brought under the Freedom of Information Law, the
government agency has the burden of proof.

 

 

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

 

cc: Board of Trustees
Eileen M. Valentine, Village Clerk