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FOIL-AO-13822

January 14, 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 appreciate having received a copy of Commissioner Mills' determination following an
appeal of a denial of access to a certain list sought by a reporter for the New York Daily News.

The request was denied on the basis of §89(2)(b)(iii) of the Freedom of Information Law,
which, as you are aware, provides that an "unwarranted invasion of personal privacy" includes the
"sale or release or lists of names and addresses if such lists would be used for commercial or fund-raising purposes." While the statute does not define what might be characterized as a "commercial purpose", the Commissioner concluded that, since "the information...sought was intended to be used to build a database to further the general interests of this for-profit company", the request involved a commercial purpose that falls within the exception cited above.

From my perspective, assuming that the request involves an effort to enhance the news
gathering capacity of a newspaper and to provide information in the nature of news to its readers,
the request does not involve a commercial purpose. In this regard, I offer the following comments.

First, although members of the news media have no special rights under the Freedom of
Information Law, it is clear that the State Legislature intended that the news media serve as an
extension of the public, as the public's eyes and ears, when it enacted the law. The legislative
declaration, §84 of the law, states in relevant part that "...government is the public's business and
that the public, individually and collectively and represented by a free press should have access to
the records of government..." The reference to the press as the representative of the public in my
view suggests that a request by a newspaper should be equated with a request by a member of the public in a manner fully consistent with the overall intent of the Freedom of Information Law.

The legislative history of the federal Freedom of Information Act (5 USC §552) and judicial
interpretations of the Act also indicate that a request by a member of the news media for news
gathering purposes does not constitute a commercial purpose, even though his or her employer is a profit-making entity.

As you are aware, the New York Freedom of Information Law is silent with respect to fee
waivers for copies of records, and it does not distinguish among applicants for records regarding fees to be assessed. In contrast, the federal Act authorizes the assessment of fees for copying, as well as the cost of searching for and reviewing records, when a request is made "for commercial use" [5 USC §552(a)(4)(A)(ii)(I)]. However, a federal agency must waive or reduce fees when so doing would be "in the public interest because furnishing the information can be considered as primarily benefitting the general public" [5 USC §552(a)(4)(A)]. As such, fees charged under the federal Act are dependent in great measure on whether a request involves a commercial or non-commercial purpose.

A sponsor of legislation designed to clarify the federal Act, Senator Leahy of Vermont,
indicated that a primary purpose of the Act is to encourage the dissemination of information in
government files and stated that:

"It is critical that the phrase 'representative of the news media' be
broadly interpreted if the act is to work as expected....In fact, any
person or organization which regularly published or disseminates
information to the public...should qualify for waivers as a
'representative of the news media.'" (132 Cong.Rec.S14298).

The House sponsors, Representatives English and Kindness, expressed the same intent, offering that:

"A request by a reporter or other person affiliated with a newspaper,
magazine, television or radio station, or other entity that is in the
business of publishing or otherwise disseminating information to the
public qualifies under this provision" (132 Cong. Rec. H9463).

In short, the intent of both the State Legislature and Congress in considering requests for
records by the news media appears to be based on the recognition that the exercise of first
amendment principles cannot be characterized as a commercial use. Further, federal court decisions have reached the same conclusion. In a decision involving access to mug shots, "although recognizing that the newspaper would reap some commercial benefit from its access to the mug shots", it was held that "news interests should not be considered commercial interests" [Detroit Free Press v. Department of Justice, 73 F.3d 93, 98 (6th Cir. 1996); see also Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir 1979); National Security Archive v. Department of Defense, 880 F.2d 1381, 1386 (D.C. Cir 1989)].

If the request does not involve a commercial purpose, but rather a news gathering function,
I do not believe that the basis for denial offered in the determination of the appeal would have been appropriately asserted.

Second, even if the request could be characterized as involving a commercial purpose, I note
that there are several judicial decisions, both New York and federal, that pertain to records about
individuals in their business or professional capacities 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 persons identified as licensees or by means of their professional or business capacities.

If you would like to discuss the matter, please feel free to contact me. I hope that I have been
of assistance.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Nellie Perez
Jonathan R. Donnellan
Russ Buettner