December 1, 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, unless otherwise indicated.
I have received your letter of November 5 and the correspondence attached to it. In addition, as required by §89(4)(a) of the Freedom of Information Law, the New York City Department of Correction ("DOC") sent copies of your appeal and the determination thereon to this office.
You wrote that you represent Rapsheets.com, a company that "conducts background checks of potential employees, applicants for apartment leases and volunteers for employers, apartment managers, not-for-profit agencies, youth sports leagues and churches." The background checks are conducted, according to your letter, "in compliance with the Fair Credit Reporting Act using database technology that accesses criminal records that it acquires, updates and otherwise maintains directly from state and county government sources."
Earlier this year, your client requested "identifying information in electronic form about detainees held by DOC, including name, date of birth, admission date, release date, and a description of the offense." Although DOC agreed to provide much of the information sought, it denied access to dates of birth on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" pursuant to §§87(2)(b) and 89(2) of the Freedom of Information Law. DOC denied your appeal, citing the same provisions as the basis for its determination.
You have requested an advisory opinion concerning the propriety of the denial of access, and in this regard, I offer the following comments.
First, and perhaps most importantly, 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.
The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], 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[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).
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)" (id.).
Second, the only ground for denial of significance in my view is that cited by DOC, §87(2)(b). Again, that provision confers authority upon an agency to deny access to records insofar as disclosure would constitute an unwarranted invasion of personal privacy. Section 89(2) provides a series of examples of unwarranted invasions of personal privacy, and DOC referred to §89(2)(b)(iv) concerning:
"Disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it."
While the provisions pertaining to unwarranted invasions of privacy might serve to enable an agency to withhold dates of birth or perhaps the ages of persons in some circumstances, I believe that an agency would be required to disclose those items in others.
For example, in situations in which requests have been made for a list of senior citizens or children participating in a city or town recreation or similar program, disclosure would identify a class of persons by means of a single characteristic, their age, and those classes of persons may be particularly vulnerable. In those instances, it has been advised that the lists identifying people whose identities are included solely to due to their ages may be withheld because disclosure would constitute an unwarranted invasion of personal privacy.
With respect to requests involving records pertaining to public employees, numerous judicial decisions suggest that, as a general rule, items found in records that are relevant to the performance of a public employee's official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been held that disclosure would indeed constitute an unwarranted invasion of personal privacy (see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977; also Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981). In a manner consistent with the general thrust of those decisions it has been advised that the age of a public employee may be withheld under §87(2)(b), for that item is largely irrelevant to the performance of one’s official duties.
With regard to the area of your interest, statutes, judicial decisions and common practice indicate that inmates enjoy a lesser degree of privacy than others. The judicial process and court records are generally open in their entirety, and frequently information available to the public through that process or the review of court records includes a variety of personal information that would be beyond public rights of access in other contexts. As you pointed out, §500-f of the Correction Law concerning a record of commitments to and discharges from county jails has long required the disclosure of several items of personal information, such as age, trade or occupation, and secular and religious education. Those items, in my view, could be withheld from the public in other contexts. In a case involving a request for videotapes made under the Freedom of Information Law, it was unanimously found by the Appellate Division that:
"...an inmate in a State correctional facility has no legitimate expectation of privacy from any and all public portrayal of his person in the facility...As Supreme Court noted, inmates are well aware that their movements are monitored by video recording in the institution. Moreover, respondents' regulations require disclosure to news media of an inmate's 'name *** city of previous residence, physical description, commitment information, present facility in which housed, departmental actions regarding confinement and release' (7 NYCRR 5.21 [a]). Visual depiction, alone, of an inmate's person in a correctional facility hardly adds to such disclosure" [Buffalo Broadcasting Company, Inc. v. NYS Department of Correctional Services, 155 AD 2d 106, 111-112 (1990)].
The Court also stated that "portions of the tapes showing inmates in states of undress, engaged in acts of personal hygiene or being subjected to strip frisks" could be withheld as an unwarranted invasion of personal privacy (id., 112), and that "[t]here may be additional portrayals on the tapes of inmates in situations which would be otherwise unduly degrading or humiliating, disclosure of which 'would result in *** personal hardship to the subject party' (Public Officers Law § 89  [b] [iv])" (id.). Those latter kinds of information that could be withheld involve intimate matters or those that could result in personal hardship to the individuals depicted.
For reasons considered in the preceding commentary, I believe that a person’s age or date of birth may be withheld from many records on the ground that disclosure would constitute an unwarranted invasion of personal privacy. However, from my perspective, those reasons are not so compelling in relation to the dates of birth of inmates that a denial of access would be justifiable. With respect to common practice, I note that the New York State Department of Correctional Services maintains a website from which any person may gain access to records pertaining to inmates currently housed in a Department facility, as well as those who have been incarcerated in those facilities within the past several years. Those records include inmates’ dates of birth.
The State Department of Correctional Services is subject to both the Freedom of Information Law and the Personal Privacy Protection Law, Article 6-A of the Public Officers Law. The latter applies only to state agencies; it does not apply to municipal entities, such as DOC. In brief, the Personal Privacy Protection Law deals in part 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 that statute, 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 a situation in which 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." Section 89(2)(b) of the Freedom of Information Law includes examples of unwarranted invasions of personal privacy, and §89(2-a) 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 pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law. By including inmates’ dates of birth within the records available on its website, the Department has effectively determined that the disclosure of dates of birth is not so intimate or likely to cause hardship as to rise to the level of an unwarranted invasion of personal privacy, and I know of no instance in which its routine disclosure of dates of birth has been questioned or challenged. Enclosed are copies of inmate records acquired here via the Department’s website that include an inmate’s date of birth; copies will also be sent to DOC.
In sum, based on the preceding remarks, I do not believe that DOC can demonstrate that disclosure of the dates of birth of its "detainees" would constitute an unwarranted invasion of personal privacy, and that, therefore, it is required to disclose those items to the public pursuant to the Freedom of Information Law.
In an effort to encourage DOC officials to reconsider its determination, copies of this opinion will be forwarded to DOC.
I hope that I have been of assistance.
Robert J. Freeman
cc: Florence A. Hutner