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FOIL-AO-15707

December 27, 2005

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 facts presented in your correspondence.

Dear Mr. Rybak:

I have received your inquiry in which you asked whether there are limitations on rights of access conferred by the Freedom of Information Law when the records sought might be used for a commercial purpose.

In this regard, as a general matter, the reasons for which a request is made and an applicant's potential use of records are irrelevant, and it has been held that if records are accessible, they should be made equally available to any person, without regard to status or interest [see e.g., M. Farbman & Sons v. New York City, 62 NYS 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Therefore, if the records are available by law, one’s intended use of the records would have no effect on rights of access.

The sole exception to that general principle involves §89(2)(b)(iii), which permits an agency to withhold "lists of names and addresses if such list would be used for commercial or fund-raising purposes" on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Due to the language of that provision, the intended use of a list of names and addresses or its equivalent may be relevant, and case law indicates that an agency can ask that an applicant certify that the list would not be used for commercial purposes as a condition precedent to disclosure [see Golbert v. Suffolk County Department of Consumer Affairs, Sup. Ct., Suffolk Cty., (September 5, 1980); also, Siegel Fenchel and Peddy v. Central Pine Barrens Joint Planning and Policy Commission, Sup. Cty., Suffolk Cty., NYLJ, October 16, 1996].

However, §89(6) of the Freedom of Information Law states that:

"Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity to any party to records."

Therefore, if records are available as of right under a different provision of law or by means of judicial determination, nothing in the Freedom of Information Law can serve to diminish rights of access. In Szikszay v. Buelow [436 NYS 2d 558, 583 (1981)], it was determined that an assessment roll maintained on computer tape must be disclosed, even though the applicant requested the tape for a commercial purpose, because that record is independently available under a different provision of law, Real Property Tax Law, §516. Since the assessment roll must be disclosed pursuant to the Real Property Tax Law, the restriction concerning lists of names and addresses in the Freedom of Information Law was found to be inapplicable.

In the context of a request for a list of names and addresses sought for a commercial purpose, if the Freedom of Information Law solely governs rights of access, an agency could in my view seek the kind of certification referenced earlier. If a different statute requires disclosure independent of the Freedom of Information Law, I believe that an agency would be required to disclose, notwithstanding the intended use of the data. Further, it is emphasized that the provision imposing a condition on disclosure pertains only to lists of names and addresses of natural persons; no conditions may be imposed, in my opinion, with respect to requests for records other than such lists of names and addresses, irrespective of the intended use of the records.

I hope that I have been of assistance.

RJF:tt