June 28, 2006
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.
I have received your correspondence in which you indicated that you represent a client, a private entity, seeking to develop "an active adult community in Rome" for tenants of at least 55 years of age.
To guarantee that to be so, the City of Rome has asked that a variety of information be reported and filed with its code enforcement office. The information would include the names, ages, dates of birth and addresses of each resident, the same items pertaining to any non-resident who visits the property for at least 24 hours, the source of any subsidy received by a tenant, and any other information "as necessary" to verify the age of a tenant. City officials have provided assurances that the information in question would be withheld under the Freedom of Information Law, §87(2)(b).
You have sought confirmation of the "the accuracy of the City’s representations." In this regard, I offer the following comments.
First, although the City might promise confidentiality or claim that the information in question would be protected, I point out that the Court of Appeals has held that a request for or a promise of confidentiality is all but meaningless; unless one or more of the grounds for denial appearing in the Freedom of Information Law may appropriately be asserted, records must be made available. In Washington Post v. Insurance Department [61 NY2d 557 (1984)], the controversy involved a claim of confidentiality with respect to records prepared by corporate boards furnished voluntarily to a state agency. The Court of Appeals reversed a finding that the documents were not "records" subject to the Freedom of Information Law, thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Moreover, it was determined that:
"Respondent’s long-standing promise of confidentiality to the intervenors is irrelevant to whether the requested documents fit within the Legislature’s definition of ‘records’ under FOIL. The definition does not exclude or make any reference to information labeled as ‘confidential’ by the agency; confidentiality is relevant only when determining whether the record or a portion of it is exempt (see Matter of John P. v Whalen, 54 NY2d 89, 96; Matter of Fink v Lefkowitz, 47 NY2d 567, 571-572, supra; Church of Scientology v State of New York, 61 AD2d 942, 942-943, affd 46 NY2d 906; Matter of Belth v Insurance Dept., 95 Misc 2d 18, 19-20). Nor is it relevant that the documents originated outside the government...Such a factor is not mentioned or implied in the statutory definition of records or in the statement of purpose..."
The Court also concluded that "just as promises of confidentiality by the Department do not affect the status of documents as records, neither do they affect the applicability of any exemption" (id., 567).
Second, 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.
I am in general agreement that the items sought to be maintained by the City could be withheld pursuant to the provision to which it referred. Specifically, §87(2)(b) permits an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." In my view, those items, names of tenants in a private facility, coupled with their ages, dates of birth, the identities of their visitors, the visitors’ dates of birth, and in some instances the fact that tenants are eligible for subsidies based on their income, would, if disclosed result in an unwarranted invasion of their privacy. However, it is important to note that even though an agency may withhold records or portions thereof in accordance with the exceptions, it is not required to do so. As stated by the Court of Appeals:
"...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency’s discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)].
Therefore, despite what may be the City’s intention to withhold the items it seeks, it is not obliged to do so.
Lastly, while the City may have the ability to withhold the items it seeks when they are requested under the Freedom of Information Law, the City may have no authority to do so if they are subject to a subpoena or discovery. In those instances, the exceptions to rights of access in the Freedom of Information Law would not apply.
I hope that I have been of assistance.
cc: Corporation Counsel, City of Rome