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February 18, 1999

 

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 correspondence of February 5 in which you sought guidance
concerning public rights of access to water and sewer bills, including customers' or users'
names. The bills have been sought by a citizens committee "looking for ways to lower their
bills."

From my perspective, the bills should be disclosed, including the names of customers
or users of water and sewers. In this regard, I 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.

Second, the only ground for denial pertinent to an analysis of rights of access is
§87(2)(b), which enables an agency to withhold records or portions thereof which "if
disclosed would constitute an unwarranted invasion of personal privacy under the provisions
of subdivision two of section eighty-nine of this article." In my opinion, the use of water or
a sewer hardly represents an intimate or personal detail of peoples' lives that could, if
disclosed, be characterized as an unwarranted invasion of privacy. It is also noted that the
records in question had been available under §51 of the General Municipal Law long before
the enactment of the Freedom of Information Law. Further, analogous information is
routinely disclosed in other records. For example, assessment records, which are clearly
public, indicate the owner and location of real property, its assessed value, details regarding
structures on the property, the amount owed or paid by the owner and whether the owner is
delinquent in the payment of taxes. The bills in question in my opinion include less
information than the assessment records, and disclosure would not be so significant as to
result in an unwarranted invasion of privacy.

Third, §89(2)(b) contains a series of examples of unwarranted invasions of privacy.
The only example relevant to the facts of the situation presented is §89(2)(b)(iv), which states
that an unwarranted invasion of privacy includes:

"disclosure of information of a personal nature when
disclosure would result in economic or personal hardship to
the subject party and such information is not relevant to the
work of the agency requesting or maintaining it..."

In construing that provision, it has been found that its language is conjunctive. As
stated by the state's highest court, the Court of Appeals, in Gannett Co. Inc. v. County of
Monroe, which considered the same provision in the original Freedom of Information Law,
"the exception...is available only if there is both proof of such hardships and it is established
that the records sought are not relevant or essential to the ordinary work of the agency or
municipality. The latter branch of this conjunctive requirement cannot be met in this instance"
[emphasis added by court, 45 NY 2d 954, 955 (1978)]. Similarly, in another case that
involved §89(2)(b)(iv), the court cited the Gannett decision and found that the application of
that provision required that the "test" of finding that disclosure would result in personal or
economic hardship and that the information was not relevant to the work of the agency could
not be met. Therefore, it was held that the records were required to be made available
[Flatbush Development Corp. v. Insurance Department, Sup. Ct., New York County, NYLJ,
October 7, 1983].

In this instance, for reasons described earlier, I do not believe that disclosure would
result in personal or economic hardship. Moreover, the records are clearly relevant to the
work of the agency. Consequently, again, I believe that the records must be disclosed,
including the names found within them.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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