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FOIL-AO-14921

September 29, 2004

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I have received your inquiry concerning rights of access to both sides of checks "written by a municipality in payment of goods or services, or pursuant to court order..." You indicated that your municipality "claims that the account number on the reverse side is protected..."

In this regard, as a general matter, 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.

Insofar as a check includes a personal account number, I believe that §87(2)(b) is pertinent. That provision authorizes an agency to deny access to records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." From my perspective, that exception could properly be asserted to withhold a personal account number.

When the account number relates to a municipality or a commercial entity, for example, or an entity other than a person, I note that, for several years, §87(2)(i) authorized an agency to withhold "computer access codes." Based on its legislative history, that provision was intended to permit agencies to withhold access codes which if disclosed would provide the recipient of a code with the ability to gain unauthorized access to information. Insofar as disclosure would enable a person with an access code to gain access to information without the authority to do so, or to shift, add, delete or alter information, i.e., to make electronic transfers, I believe that a bank account or ID number could justifiably have been withheld. Section 87(2)(i) was amended in recognition of the need to guarantee that government agencies have the ability to ensure the security of their information and information systems. That provision currently states that an agency may withhold records or portions of records which "if disclosed, would jeopardize an agency’s capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures." If disclosure of a bank account number could enable a person to gain access to or in any way alter or adversely affect electronic information or electronic information systems, I believe that it may justifiably be withheld.

Lastly when a check may be used or deposited by an individual, the back of the check indicating an endorsement could, based on a judicial decision, be withheld. In Minerva v. Village of Valley Stream (Sup. Ct., Nassau Cty., August 20, 1981), the issue involved a request for copies of both sides of cancelled checks made payable to a municipality’s attorney. Although the court held that the front sides of the checks, those portions indicating the amount paid to the attorney, must be disclosed, it was found that the backs of the checks could be withheld, for disclosure might indicate how the attorney "spends his ‘paychecks.’"

I hope that I have been of assistance.

RJF:jm