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August 7, 2001

FOIL-AO-12866

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

As you are aware, I have received your letter of June 29 and the materials attached to it. You
have sought an advisory opinion concerning rights of access to certain records that have been
withheld by the New York City Department of Transportation ("DOT").

You wrote that you requested "copies of all requests received by the DOT in the calendar
year 2000 for maps showing sidewalk, curb, crosswalk, pothole and obstruction problems." In
response, you were informed that the records were being withheld under §§87(2)(b) and 89(2)(b)(iii)
of the Freedom of Information Law. The former 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..."; the latter 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."

By way of background, you wrote that:

"The New York State Trial Lawyers Association runs a project
known as the Big Apple Pothole & Sidewalk Protection Committee
(Big Apple). Big Apple contracts with an independent surveying firm
which conducts an annual survey of the streets and curbs of New
York City and annotates templates of maps used by the City of New
York to show pavement defects. Big Apple files copies of these
annotated maps with the DOT, thereby furnishing the City with the
‘notice' required by General Municipal Law Section 50-g and Section
7-201 of the Administrative Code of the City of New York.

"Big Apple also furnishes such information and provides other
assistance to trial lawyers who are bringing lawsuits or considering
bringing lawsuits against the City for accidents suffered on its streets
and curbs. Big Apple charges the trial lawyers for these services.
Sometimes trial lawyers request and receive copies under the
Freedom of Information Law. It is the copies of requests filed by
those lawyers to which NYSTLA is seeking access in this FOIL
request."

You noted further that:

"NYSTLA is not seeking information about private citizens. Rather
we are seeking information that will contain the names of certain
attorneys and law firms who request copies of the maps filed by its
Big Apple project from the DOT. The original request spoke in terms
of requests, as it is known to all involved that the overwhelming
majority of those requests are made by attorneys (or the law firms in
which they practice). It is unlikely that very many non-attorneys
know of the existence of such maps, their significance to a lawsuit
and their availability under FOIL. The names of the very few, if any,
private individuals who may appear on the list could easily be
redacted from the copies."

You have contended that requests for maps by attorneys or law firms involve activities that
those persons or entities carry out in their capacities as professionals, not as private citizens, and that,
therefore, DOT had no basis for denying access to those records. I agree, and in this regard, I offer
the following comments.

First, 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.

Second, §89(2)(b)(iii) 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.

Third, based on the language of the Freedom of Information Law, as well as other statutes
and their judicial construction, it is clear in my view that the provisions dealing with the protection
of personal privacy are intended to deal with natural persons, rather than entities, such as
corporations, or individuals acting in business or professional capacities. The Personal Privacy
Protection Law, although only applicable to state agencies, when read in conjunction with the
Freedom of Information Law makes clear that the protection of privacy as envisioned by those
statutes is intended to pertain to personal information about natural persons [see Public Officers
Law, §§92(3), 92(7), 96(1) and 89(2-a). Therefore, insofar as the information at issue would identify
entities, such as law firms, I do not believe that the information could be withheld based upon
considerations of privacy. In a decision rendered by the Court of Appeals cited earlier that focused
upon the privacy provisions, the Court referred to the authority to withhold "certain personal
information about private citizens" (see Federation of New York State Rifle and Pistol Clubs, Inc.
supra). In another decision rendered by the Court of Appeals and a discussion of "the essence of the
exemption" concerning privacy, the Court referred to information "that would ordinarily and
reasonably regarded as intimate, private information" [ Hanig v. State Dept. of Motor Vehicles, 79
NY 2d 106, 112 (1992)]. In view of the direction given by the state's highest court, again, I believe
that the authority to withhold the information based upon considerations of privacy is restricted to
those situations in which records contain personal information about natural persons, as opposed to
information identifiable to those acting in a business capacity.

Several judicial decisions, both New York State and federal, pertain to records about
individuals in their business or professional capacities and 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 does not apply to a record identifying entities, such as law firms, or individuals
acting in their business or professional capacities.

With respect private citizens who may have made requests for maps, as you suggested and
as §89(2)(b) states, personally identifying details may be deleted prior to the disclosure of the
remainder of those records.

Lastly, I note that the courts have consistently found that the exceptions to rights of access
granted by the Freedom of Information Law should be construed narrowly. The Court of Appeals
expressed its general view of the intent of the Freedom of Information Law in Gould v. New York
City Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions
are to be narrowly construed, with the burden resting on the agency
to demonstrate that the requested material indeed qualifies for
exemption' (Matter of Hanig v. State of New York Dept. of Motor
Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750
see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly
where the material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:tt

cc: Seth Cummin
Susan A. Spector