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December 28, 1999

 

FOIL-AO-11870


The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence.

Dear

I appreciate having received your determination of an appeal rendered under the
Freedom of Information Law following a request by James F. LaRue of JFL Environmental,
Inc. Mr. LaRue sought a "list of industries that have paid surcharge fees for exceeding
federal and state limits for wastewater discharged into Westchester County's sewer system."
You sustained the initial denial of the request on the basis of §87(2)(b) of the Freedom of
Information Law, which authorizes agencies to withhold records insofar as disclosure would
constitute "an unwarranted invasion of personal privacy", and §89(2)(b)(iii), which states that
an unwarranted invasion of personal privacy includes the "sale or release of lists of names
and addresses if such lists would be used for commercial or fund-raising purposes."

I respectfully disagree with your determination.

From my perspective, and in view of 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 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). Similarly, 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 may be asserted to withhold records
pertaining to entities other than natural persons. On the contrary, since the records sought
relate to commercial entities, I do not believe that any of the grounds for denial would be
applicable.

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

Sincerely,

Robert J. Freeman
Executive Director

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