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 FOIL-AO-13878

February 12, 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 information presented in your
correspondence.

Dear

I have received your letter in which you sought "input" concerning a request made under the
Freedom of Information Law.

The request involved the names, addresses and telephone numbers of licensed contractors
in Putnam County. You wrote that the County maintains both electronic and paper files pertaining
to contractors and that the only list that can be generated electronically includes contractors' names
and addresses; telephone numbers are not included within the electronic data. You added that
"[a]ccess to phone numbers would have to be manual and personal information deleted prior to
releasing copies of approximately 950 records." Although you granted access to the list that could
be computer generated, the portion of the request involving telephone numbers was denied and has
been appealed. You have contended that the request for telephone numbers "appears to be beyond
the intent of the law for the 'people's right to know process of government'" (emphasis yours).

In this regard, I offer the following comments.

First, notwithstanding §84 of the Freedom of Information Law, the legislative declaration that
focuses on the intent of the law, it has been held that records must be disclosed, even if they are
unrelated to "the process of government" or accountability, unless an exception to rights of access
may be asserted.

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 the significance of the records
relative to the process of government, is in my opinion irrelevant.

Second, there are several judicial decisions, both New York State and federal, that pertain
to records about individuals in their business or professional capacities and 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)].

Similarly, the Court of Appeals has held that the records may be withheld on the ground that
disclosure would constitute "an unwarranted invasion of personal privacy" [see §87(2)(b)] insofar
as records include information of a personal or intimate nature [see Hanig v. State Department of
Motor Vehicles, 79 NY2d 106 (1992)]. A contractor's business address and business telephone
number would not, in my view, represent items of a personal or intimate nature. A home address
or home phone number on the other hand (assuming that they are different from a business address
or business phone number) could, in my opinion, justifiably be withheld as an unwarranted invasion
of personal privacy.

In sum, I believe that business telephone numbers of contractors should be made available,
since none of the grounds for denial of access would apply.

Lastly, when records are available in their entirety under the Freedom of Information Law,
the public may inspect them at no charge. However, the records containing telephone numbers
apparently also include personal information that the public has no right to inspect. In that kind of
situation, disclosure would involve preparing a photocopy, from which certain items would be
deleted. It has been held that an agency may charge up to twenty-five cents per photocopy and may
require payment of the requisite fee in advance of photocopying (see VanNess v. Center for Animal
Care and Control, Supreme Court, New York County, January 28, 1999). As such, prior to
disclosure of 950 records containing contractors' telephone numbers, I believe that the County could
require advance payment of $237.50.

If the information appears on a form, it has been advised in similar situations that a stencil
be prepared to cover those portions of a form that may be withheld or that have not been requested.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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