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January 6, 1999

FOIL-AO-11239

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

I have received your recent letter in which you requested an opinion concerning the
release of certain information under the Freedom of Information Law.

You referred to the decision rendered in New York Times Company and Newsday,
Inc. v. New York State Department of Health [243 AD2d 157 (1998)] in which it was held, in
brief, that the disclosure of physician identifiers contained in the Statewide Planning and
Research Cooperative System ("SPARCS") would not constitute an unwarranted invasion of
privacy of patients. Of concern in relation to the decision, according to your letter, "is the
release of physician identifiers which would tend to identify the name of any provider who
has performed an abortion." You suggested that "[g]iven attacks on abortion providers,
including the recent shooting of a physician in western New York, and other activities such
as the posting of names of abortion providers on the Internet, it would seem reasonable to
withhold information tending to identify abortion providers on the basis that such disclosure
would endanger the life or safety of those physicians."

I agree with your contention. 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 §87(2)(a)
through (i) of the Law.

Pertinent is the provision to which you alluded, §87(2)(f), which permits an agency to
withhold records or portions thereof which if disclosed "would endanger the life or safety of
any person." As you are aware, an agency has the burden of defending secrecy and
demonstrating that records that have been withheld clearly fall within the scope of one or
more of the grounds for denial [see §89(4)(b)]. However, in the case of the assertion of the
provision at issue, the standard developed by the courts is somewhat less stringent. In citing
§87(2)(f), it has been found that:

"This provision of the statute permits nondisclosure of
information if it would pose a danger to the life or safety of any
person. We reject petitioner's assertion that respondents are
required to prove that a danger to a person's life or safety will
occur if the information is made public (see, Matter of Nalo v.
Sullivan, 125 AD2d 311, 312, lv denied 69 NY2d 612).
Rather, there need only be a possibility that such information
would endanger the lives or safety of individuals...."[Stronza v.
Hoke, 148 AD2d 900,901 (1989)].

It is noted that the principle enunciated in Stronza has appeared in several other decisions
[see Ruberti, Girvin & Ferlazzo v. NYS Divsion of the State Police, 641 NYS 2d 411, 218
AD2d 494 (1996), Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991)
and McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994.]
Additionally, it was determined in American Broadcasting Companies, Inc. v. Siebert that
when disclosure would "expose applicants and their families to danger to life or safety",
§87(2)(f) may properly be asserted [442 NYS2d 855, 859 (1981)].

In sum, in view of the violence that has been committed in New York and elsewhere
in relation to abortion providers, I believe that the Department could properly withhold the
names of those physicians contained within the SPARCS database.

I hope that I have been of assistance. If you would like to discuss the matter, please
feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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