NY.gov Portal State Agency Listing

 

FOIL-AO-13186

January 8, 2003

 

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

I have received your letter of November 22 and the materials attached to it. You have sought
an opinion concerning a request made under the Freedom of Information Law to the State Insurance
Fund. Although voluminous materials were disclosed, certain items were redacted, such as the names
of officers and employees of a vendor, "pedigree information", as well as "the names of independent
contractors used to perform service under the contract..."

In this regard, I offer the following comments.

As you are aware, 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.

From my perspective, the identities of employees of private companies generally may be
withheld from records that come into the possession of a government agency. By means of analogy,
an Appellate Division decision affirmed the findings of the Supreme Court in a case involving a
situation in which a union sought home addresses of an agency's contractors' employees for the
purpose of "monitoring and prosecution of prevailing wage law violations." The court found that the
employees' identities could be withheld, stating that the applicant's "entitlement to access does not
necessarily entitle it to the reports in their entirety. Indeed portions of the report made available to
petitioner should be expunged to protect (the) privacy of the employees" [Joint Industry Board of the
Electrical Industry v. Nolan, Supreme Court, New York County, May 1, 1989; affirmed 159 AD 2d
241 (1990)].

In the case of a state agency subject to both the Freedom of Information Law and the Personal
Privacy Protection Law, a key element of that statute deals with the disclosure of records or personal
information by state agencies concerning data subjects. A "data subject" is "any natural person about
whom personal information has been collected by an agency" [Personal Privacy Protection Law,
§92(3)]. "Personal information" is defined to mean "any information concerning a data subject which,
because of name, number, symbol, mark or other identifier, can be used to identify that data subject"
[§92(7)]. For purposes of Personal Privacy Protection Law, the term "record" is defined to mean "any
item, collection or grouping of personal information about a data subject which is maintained and is
retrievable by use of the name or other identifier of the data subject" [§92(9)].

With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No
agency may disclose any record or personal information", except in conjunction with a series of
exceptions that follow. One of those exceptions involves when a record is "subject to article six of this
chapter [the Freedom of Information Law], unless disclosure of such information would constitute an
unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section
eighty-nine of this chapter." It is noted, too, that §89(2-a) of the Freedom of Information Law states
that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of
personal privacy as defined in subdivision two of this section if such disclosure is prohibited under
section ninety-six of this chapter". Therefore, if a state agency cannot disclose records or portions of
records pursuant to §96 of the Personal Privacy Protection Law, it is precluded from disclosing under
the Freedom of Information Law.

In my view, a different conclusion should apply with respect to the portion of your request
involving the identities of independent contractors. If a contractor is a business entity, such as a
corporation, the provisions pertaining to the protection of privacy would not, in my opinion, apply.
Again, those provisions relate to information concerning natural persons. If a contractor is a person
who serves as principal of a business entity, as you are aware, it has been held by the state's highest
court that the provisions dealing with the protection of personal privacy involve "certain personal
information about private citizens" [see Federation of New York State Rifle and Pistol Clubs, Inc., 73
NY 2d 92 (1989)]. 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.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:tt

cc: Jeffrey R. Ritter