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  August 9, 2001

FOIL-AO-12874

Dear

I have received your letter of June 29 in which you raised a series of issues concerning an
advisory opinion prepared at your request on June 18. In consideration of your remarks, I offer the
following comments.

First, because a primary function of the Committee on Open Government involves an effort
to educate and encourage compliance with law, copies of advisory opinions are routinely sent to the
entities that are the subjects of the opinions. The receipt of copies of opinions by governmental
entities has on countless occasions served to enhance compliance with the Freedom of Information
and Open Meetings Laws.

Second, the records that you requested "are those of purchased and installed ground source
heat pumps by the residential community." You contend that portions of the records containing the
"name, installation address, city , state and zip" must be disclosed, and that the records do not
constitute "a list of names and addresses." From my perspective, if a grouping of records is intended
to be used for the purpose of creating the equivalent of a mailing list for a commercial or fund-
raising purpose, the provision cited in the opinion of June 18 would be implicated.

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, the state's highest court, 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)].

The only exception to the principles described above involves a provision pertaining to the
protection of personal privacy. As indicated previously, §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.
Although the status of an applicant and the purposes for which a request is made are irrelevant to
rights of access and an agency cannot ordinarily inquire as to the intended use of records, 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); 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 assurance that a list of names and addresses will not be used for
commercial or fund-raising purposes. 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.).

While your request may not involve a list per se, it has been held, in essence, that a request for
records that would be used to develop a list of names and addresses to be used for a commercial
purpose may be denied [see Scott, Sardano & Pomeranz, supra, 65 NY 2d 294 (1985)]. That
decision dealt with a request by a law firm for copies of motor vehicle accident reports to be used
for the purpose of direct mail solicitation of accident victims. Although the Court of Appeals found
that accident reports are available, in view of the intended use of the reports, i.e., to create a mailing
list for a commercial purpose, it was determined that names and addresses of accident victims could
be withheld based on considerations of privacy. Therefore, if you are seeking the records in order
to develop a mailing list or its equivalent to be used for commercial or fund-raising purposes,
§89(2)(b)(iii) may be pertinent.

I hope that the foregoing serves to clarify your understanding of the matter.

Sincerely,

 

Robert J. Freeman
Executive Director

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