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FOIL-AO-16051

June 28, 2006

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 and the materials relating to it. You have sought my views concerning a denial of your request made to the State Education Department for the names and mailing addresses of physical therapists licensed in New York.

Although a list containing equivalent and additional information was made available to you by the Department in 2001, your request was denied based on the following statement:

"In order to carry out its statutory responsibilities, the Department currently collects and maintains one address record for each licensed professional in New York State. Because many licensees do not have a business address, our computers necessarily contain the home addresses of virtually thousands of licensees. As our computerized files are currently configured, we are unable to distinguish a licensee’s business address from a residential address. For this reason we do not provide licensee addresses to the public as it would be an invasion of the licensee’s privacy."

From my perspective, the denial of your request is inconsistent with law. In this regard, I offer the following comments.

First, 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. One of the exceptions authorizes an agency to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy" [§§87(2)(b), 89(2)(b)]. However, based on the language of the Freedom of Information Law, as well as other statutes and their judicial construction, I believe that the provisions dealing with the protection of personal privacy are intended to deal with natural persons, rather than entities, such as corporations, or individuals in relation to their business or professional capacities. The Personal Privacy Protection Law, which is applicable to state agencies, when read in conjunction with the Freedom of Information Law makes clear that the protection of privacy as envisioned by those statutes is intended to pertain to personal information about natural persons [see Public Officers Law, §§92(3), 92(7), 96(1) and 89(2-a). In a decision rendered by the Court of Appeals, the state’s highest court, that focused upon the privacy provisions, the Court referred to the authority to withhold "certain personal information about private citizens" [see Federation of New York State Rifle and Pistol Clubs, Inc., 73 NY2d 92 (1989)]. In another decision rendered by the Court of Appeals and a discussion of "the essence of the exemption" concerning privacy, the Court referred to information "that would ordinarily and reasonably regarded as intimate, private information" [ Hanig v. State Dept. of Motor Vehicles, 79 NY 2d 106, 112 (1992)]. In view of the direction given by the state’s highest court, again, I believe that the authority to withhold the information based upon considerations of privacy is restricted to those situations in which records contain personal information about natural persons, as opposed to information identifiable to those in their business or professional capacities.

Several judicial decisions, both New York State and federal, pertain to records about individuals in those capacities and 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 New York 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.." (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 indicated in the decisions cited above, the exception concerning privacy does not apply to a record identifying entities or individuals in relation to their business or professional capacities. That being so, I do not believe that there is a basis for withholding the names and addresses relating to professional licensees.

Second, on the basis of the response to your request, the Department apparently does not know and cannot ascertain whether addresses that it maintains pertaining to licensees are business or home addresses. When an agency maintains both business and home addresses, it has been advised that the home addresses may be withheld as an unwarranted invasion of personal privacy. The business address indicates where the licensed activity is carried out, and the home address is irrelevant to one’s activities as a licensee. However, if an agency has only one address relating to a licensee, it has been advised that the address is accessible.

I note that when an agency’s denial of access to records is challenged in a judicial proceeding, §89(4)(b) of the Freedom of Information Law states that the agency has the burden of proving that the records were properly withheld in accordance one or more of the exceptions to rights of access. If the agency does not know whether it maintains a home address or a business address, I do not believe that it could justify a denial of access based on its contention that some, but not all of the addresses, are home addresses.

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[4][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). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Department.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Joan Kasper
Nellie Perez