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October 27, 2000

FOIL-AO-12362

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

As you are aware, I have received your letter of September 11 in which you asked
whether the addresses used in developing the County's E911 system are subject to disclosure
under the Freedom of Information Law. You may recall that we discussed the matter, and I
believe that we are generally in agreement.

From my perspective, there may be a variety of possible responses depending on the
nature of requests. In this regard, in brief, 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.

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)]. As stated by the Court of Appeals:

"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)].
Based on the foregoing, unless there is a basis for withholding records in accordance
with the grounds for denial appearing in §87(2), the use of the records, including the potential
for commercial use, is in my opinion irrelevant; when records are accessible, once they are
disclosed, the recipient may do with the records as he or she sees fit.

The only exception to the principles described above involves the protection of
personal privacy. By way of background, §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 indicated earlier, the status of an applicant or the purposes for which a request is
made are irrelevant to rights of access, and an agency cannot 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); Federation of New York State Rifle and Pistol Clubs, Inc. v.
New York City Police Dept., 73 NY 2d 92 (1989); Goodstein v. Shaw, 463 NYS 2d 162
(1983)].

In the context of your inquiry, I believe that a request for a list of the names and
addresses could be withheld, if the list would be used for a commercial or fund-raising
purpose. In other circumstances, the list would be likely be accessible.

In some instances requests might be made for certain information contained within
the list. For example, if a request is made for certain names or addresses, i.e., those involving
calls relating to medical emergencies, because those referenced on the list would be
associated with a medical problem or event, disclosure would, in my view, constitute an
unwarranted invasion of personal privacy, irrespective of the intended use of the records.
Further, assuming that the list includes phone numbers, some of which are unlisted, those
portions of the database may in my view be withheld to protect personal privacy regardless of
the purpose of the request. In other circumstances, depending on the nature of the request,
perhaps names and phone numbers would be withheld, but the addresses would be available.

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

Sincerely,

Robert J. Freeman
Executive Director
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