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September 19, 2001

FOIL-AO-12949

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

I have received your letter of August 20. On behalf of WB11/WPIX-TV and its reporter,
Polly Kreisman, you have sought an advisory opinion concerning rights of access to records "relating
to a single Furbearer Possession Tag" maintained by the Department of Environmental Conservation.
The Department has denied access on the ground that disclosure would constitute an unwarranted
invasion of privacy. The record most likely to exist appears to be a completed Furbearer Possession
Tag application, and you included a blank copy of that document.

The general instructions on the application indicate that it allows the "the taker" to "legally
possess the pelt or unskinned animal until sealing is required" and that the completed form must be
sent to the Department. The application requires a person's name, address, date of birth, and
information concerning the kind of animal taken, the town, county and date taken. Following the
submission of the application to the Department, it fills in a seal number, with the date, the region
and the "badge or sealer" number. A seal is then sent to the person who completed the application.

From my perspective, most of the application must be disclosed. In this regard, I offer the
following comments.

First, 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. It is
emphasized that the introductory language of §87(2) refers to the authority to withhold "records or
portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase
quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single
record or report, for example, might include portions that are available under the statute, as well as
portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation
on an agency to review records sought, in their entirety, to determine which portions, if any, might
properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals reiterated its general view of the intent of the Freedom of Information
Law in Gould, 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).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access
to records is inconsistent with the requirements of the Freedom of Information Law. In that case,
the Department contended that certain records could be withheld in their entirety on the ground that
they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different
from that referenced in response to the request at issue. The Court, however, wrote that: "Petitioners
contend that because the complaint follow-up reports contain factual data, the exemption does not
justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle
that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open
government" (id., 275). The Court also offered guidance to agencies and lower courts in determining
rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must
articulate 'particularized and specific justification' for not disclosing
requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d,
at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to
determine whether withheld documents fall entirely within the scope
of the asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of Xerox Corp. v. Town
of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City Health & Hosps. Corp.,
supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In the context of the request by Ms. Kreisman, rather than citing §87(2)(g) as a basis for a
blanket denial of access to the records at issue in Gould, the Department appears to have engaged
in a blanket denial by relying on a different provision in a manner which, in my view, is equally
inappropriate. I am not suggesting that the record or records sought must be disclosed in full.
Rather, based on the direction given by the Court of Appeals in several decisions, any such records
must be reviewed by the Department for the purpose of identifying those portions that might fall
within the scope of one or more of the grounds for denial of access. As the Court stated later in the
decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or
specific portions thereof, under any other applicable exemption, such as the law-enforcement
exemption or the public-safety exemption, as long as the requisite particularized showing is made"
(id., 277; emphasis added).

Second, I believe that the only ground for denial of significance is the provision to which the
Department alluded, §87(2)(b), which states that an agency may withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal privacy." The issuance of a
furbearer possession tag, as I understand its function, indicates that the recipient, a licensed hunter
or trapper, has met certain requirements imposed by the Department pursuant to the Environmental
Conservation Law, Article 11, and the regulations promulgated thereunder, 6 NYCRR §6.3(c). The
latter state in part that:

"Tagging and sealing requirements for beaver, otter, coyote, bobcat,
fisher and pine marten taken in New York State. (1) Persons
intending to take the species listed in the this subdivision in the State
must first obtain a supply of furbearer possession tags from the
department.

(2) To legally possess until sealing, as required by paragraph (3) of
this subdivision, the unprocessed pelt or unskinned carcass of a
species listed in this subdivision legally taken in this State, the taker
must:

(i) complete an entire furbearer possession tag
immediately upon reaching the license vehicle used by
the taker for highway travel, or immediately upon
reach the camp or home used by the taker, whichever
comes first after the animal is taken; and

(ii) keep the above-mentioned tag with the pelt (or
unskinned carcass) at all times until the pelt (or
unskinned carcass) is sealed."

Historically, information pertaining to those persons or entities obtaining licenses, permits
and similar certifications has been available to the public, for it is intended to enable the public to
know that those persons or entities are qualified to engage in certain activities in which the
government has a substantial interest. The fact that a license has been issued to engage in the
practice of a variety of professions (i.e., medicine, law, architecture, social work, etc.) and other
kinds of activities, (i.e., selling real estate, being a barber or cosmetologist, driving an automobile
or possessing a firearm) involve matters all of which enable the public to know that the recipient has
met the required conditions for licensure or engaging in certain activities. While a furbearer
possession tag may not be a license or permit per se, I believe that it serves an analogous function;
it enables the public to know that a person, through hunting or trapping, may take and possess certain
species of animals in the state.

Although the standard in the law relating to unwarranted invasions of personal privacy is not
specific, the Court of Appeals has held that the "essence" of the exception involves an intent to
enable an agency to withhold items "that would ordinarily and reasonably be regarded as intimate,
private information" [Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 112 (1992)]. As
the foregoing relates to the information contained in the application, the only item, in my view, that
is uniquely personal or private would be one's date of birth. That item, in my opinion, could be
deleted. The only other items which if disclosed might arguably constitute an unwarranted invasion
of personal privacy would be the "street or box number" and the city, assuming that those items
reflect the applicant's home address. I believe that the remaining items on the application, including
the applicant's name, the "trapping/hunting stamp number", the state and zip code of the applicant,
the county, town and date an animal was taken, and the details relating to animals, would be
accessible. Several of those items are unrelated to personal privacy, and the others, not being
"intimate" would in my opinion constitute a permissible rather than an unwarranted invasion of
personal privacy if disclosed.

With specific reference to the street and city address, some have contended that those items
must be withheld to protect personal privacy. However, in some instances, the residence addresses
of licensees or permit holders are public. For instance, under §400.00(5) of the Penal Law, the
names and residence addresses of holders of firearms licenses must be disclosed. Further, in an
example of an unwarranted invasion of personal privacy, §89(2)(b)(iii) refers to the "sale or release
of lists of names and addresses if such lists would be used for commercial or fund-raising purposes."
My understanding is that the reporter may be seeking a single application and that her request is
unconnected to any commercial or fund-raising activity. In consideration of the foregoing, the ability
to withhold the street name and city would, in my view, be questionable.

Lastly, if the applicant was acting in a business capacity, I believe that the only item that
could be withheld would be the date of birth. Several judicial decisions, both New York State and
federal, pertaining to records about individuals in their business or professional capacities 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, 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 this instance, although the information in question would be identifiable to a particular
individual, if it pertains to his or her business capacity, again, I believe that the only item that could
justifiably be withheld would be the date of birth.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Ruth Earl