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July 20, 2001

FOIL-AO-12816

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, unless otherwise indicated.

Dear

I have received your letter of June 6, as well as a variety of materials relating to it. You have
sought an opinion concerning your right to obtain a "vendor list" from Rensselaer County.

By way of background, as you are aware, §87(2)(b) of the Freedom of Information Law
authorizes 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..." One of those provisions, §89(2)(b)(iii), states that an unwarranted
invasion of personal privacy includes "sale or release of lists of names and addresses if such lists
would be used for commercial or fund-raising purposes."

In this regard, as a general matter, 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)]. Moreover, the Court of Appeals has
held that:

"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 NY 2d
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)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. Similarly, 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 or fund-raising, 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.

Section 89(2)(b)(iii), however, represents what might be viewed as an internal conflict in the
law. As indicated above, 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.
Nevertheless, 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 a case involving a list of names and addresses in which the agency inquired as to the
purpose for which the list was requested, it was found that an agency could make such an inquiry.
Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk
County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this
office in which it was advised that an agency may appropriately require that an applicant for a list
of names and addresses provide an indication of the purpose for which a list is sought. In that
decision, it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the
record does it appear that petitioner intends to use the information
sought for commercial or fund-raising purposes. However, the reason
for that deficiency in the record is that all efforts by respondents to
receive petitioner's assurance that the information sought would not
be so used apparently were unsuccessful. Without that assurance the
respondents could reasonably infer that petitioner did want to use the
information for commercial or fund-raising purposes."

In addition, it was held that:

"[U]nder the circumstances, the Court finds that it was not
unreasonable for respondents to require petitioner to submit a
certification that the information sought would not be used for
commercial purposes. Petitioner has failed to establish that the
respondents denial or petitioner's request for information constituted
an abuse of discretion as a matter of law, and the Court declines to
substitute its judgement for that of the respondents" (id.).

As such, there is precedent indicating that an agency may inquire with respect to the purpose of a
request when the request involves a list of names and addresses. The County in this instance has
sought written assurance from you that the list in question would not be used for a commercial or
fund-raising purpose.

A key issue in my view involves the nature and content of the vendor list. The Assistant
County Attorney indicated that the list includes not only persons or entities doing business with the
County, for he wrote that:

"County employees who seek expense reimbursement are included on
the vendor list, due to the procedures followed by the county in
making that reimbursement. All reference to those employees shall
be redacted from the vendor list, because they are not ‘doing
business' with Rensselaer County in any sense of the phrase."

Before considering those portions of the list that identify County employees, I note that, in
my view, the remainder would be accessible, for it would deal with commercial enterprises or
persons acting in a business capacity. There are several judicial decisions, both New York State and
federal, that pertain to records about individuals in their business or professional capacities and
which indicate that the records are not of a "personal nature." For instance, one involved a request
for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS
Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In granting
access, the court relied in part and quoted from an opinion rendered by this office in which it was
advised that "the provisions concerning privacy in the Freedom of Information Law are intended to
be asserted only with respect to 'personal' information relating to natural persons". 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. In interpreting the Federal Freedom of Information Law
Act (5 USC 552), the Federal Courts have already drawn a distinction
between information of a 'private' nature which may not be disclosed,
and information of a 'business' nature which may be disclosed (see
e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425
(D.C.D.C. 1983)."

In another decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany
County, October 15, 1991)], data acquired by the State Department of Health concerning the
performance of open heart surgery by hospitals and individual surgeons was requested. Although
the Department provided statistics relating to surgeons, it withheld their identities. In response to
a request for an advisory opinion, it was advised by this office, based upon the New York Freedom
of Information Law and judicial interpretations of the federal Freedom of Information Act, that the
names should be disclosed. The court agreed and cited the opinion rendered by this office.

Like the Freedom of Information Law, the federal Act includes an exception to rights of
access designed to protect personal privacy. Specifically, 5 U.S.C. 552(b)(6) states that rights
conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy." In construing that
provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public
disclosure of 'intimate details of their lives, whether the disclosure be
of personnel files, medical files or other similar files'. Board of Trade
of City of Chicago v. Commodity Futures Trading Com'n supra, 627
F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of
Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA,
484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural
Housing stated that the exemption 'is phrased broadly to protect
individuals from a wide range of embarrassing disclosures', 498 F.2d
at 77, the context makes clear the court's recognition that the
disclosures with which the statute is concerned are those involving
matters of an intimate personal nature. Because of its intimate
personal nature, information regarding 'marital status, legitimacy of
children, identity of fathers of children, medical condition, welfare
payment, alcoholic consumption, family fights, reputation, and so on'
falls within the ambit of Exemption 4. Id. By contrast, as Judge
Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399,
the decisions of this court have established that information
connected with professional relationships does not qualify for the
exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-
573 (1980)].

In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it
was stated pointedly that: "The privacy exemption does not apply to information regarding
professional or business activities...This information must be disclosed even if a professional
reputation may be tarnished" (supra, 429). Similarly in a case involving disclosure of the identities
of those whose grant proposals were rejected, it was held that:

"The adverse effect of a rejection of a grant proposal, if it exists at all,
is limited to the professional rather than personal qualities of the
applicant. The district court spoke of the possibility of injury
explicitly in terms of the applicants' 'professional reputation' and
'professional qualifications'. 'Professional' in such a context refers to
the possible negative reflection of an applicant's performance in
'grantsmanship' - the professional competition among research
scientists for grants; it obviously is not a reference to more serious
'professional' deficiencies such as unethical behavior. While
protection of professional reputation, even in this strict sense, is not
beyond the purview of exemption 6, it is not at its core" [Kurzon v.
Department of Health and Human Services, 649 F.2d 65, 69 (1981)].

In short, in my opinion and as suggested in the decisions cited above, the exception
concerning privacy, including §89(2)(b)(iii), does not apply to a list of vendors doing business with
the County.

With respect to portions of the list identifying County employees, their names, in my view,
would clearly be accessible if those portions of the list fall within the scope of your request. The list
indicates payments to public employees who are being paid or reimbursed in relation to the
performance of their official duties. That being so, as in the case of commercial vendors, the
inclusion of the names of public employees also pertains to those persons in relation to their
governmental activities, and disclosure of their identities would, in my view, constitute a permissible
rather than an unwarranted invasion of personal privacy. It is not clear which address of public
employees is included in the list. If it is the work address, I believe that would also be public. There
would be nothing personal or intimate about a public employee's work address, and although
tangential to the matter, §87(3)(b) specifies that each agency must maintain a record that includes
the "public office address" of every officer or employee of the agency. If, however, the address of
a public employee included in the list is his or her home address, the home address could be
withheld. Section 89(7) states that nothing in the Freedom of Information Law shall require the
disclosure of the home address of a present or former public employee.

In sum, for the reasons discussed in the preceding commentary, because the list of vendors
consists of information relating to persons or entities in relation to their business or governmental
activities, I do not believe that §89(2)(b)(iii) concerning the use of a list of names and addresses for
commercial or fund-raising purposes is applicable. Consequently, I do not believe that the County
can condition disclosure on your assertion that you would not use the list for those purposes.
However, insofar as the list identifies public employees and includes their home addresses, the home
addresses, pursuant to §89(7) of the Freedom of Information Law, may be withheld. If the list does
not contain public employees' home addresses, but rather their work addresses, I believe that the list
would be available in its entirety.

A copy of this response will be forwarded to the County Attorney.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Robert A. Smith, County Attorney