May 9, 2007
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.
As you are aware, I have received your letter in which you sought an advisory opinion concerning a situation in which DataTrace, “a land records company”, has expressed an interest in purchasing “copies of [y]our land records in electronic form.” You specified that DataTrace is not asking that “extensive programming” be carried out, but rather that it is merely seeking copies of existing records. You indicated that the volume of the records is substantial, involving “close to 5 million images of deeds and mortgages, plus the indices to said records.”
You have asked whether a request for the records made pursuant to the Freedom of Information Law must be honored, even though a small number among them may contain “personal identifying information (e.g., social security numbers).” You added that there are several legislative proposals that may address the treatment of intimate personal information appearing in the records, but that, to date, you know of none that have been approved, and that it is your belief that you have no authority under existing law “to redact any such public record.”
In this regard, I offer the following comments.
First, there is nothing in the Freedom of Information Law that limits the number or volume of records that may be requested. I note that there is precedent sustaining the propriety of a denial of a request for millions of paper records, which, if granted, “would bring in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy” (Fisher & Fisher v. Davison, Supreme Court, New York County, October 6, 1988). Your remarks suggest, however, that the records at issue in this instance are maintained electronically, that no time consuming or onerous programming would be necessary to satisfy the request, and that, therefore, the burden of transferring the records from one electronic storage medium to another would not significantly interfere with the work of your office. If that is so, the volume of the material requested would, in my opinion, be of no relevance. I point out, too, that requests, particularly by news media organizations, involving millions of items of data have been made and honored.
Second, it is emphasized that the Freedom of Information Law is permissive. Although an agency may withhold records in accordance with the grounds for denial appearing in §87(2), the Court of Appeals has held that the agency is not obliged to do so and may choose to disclose. As stated in that unanimous decision: "...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)].
There is judicial precedent specifically indicating that an entity of local government is not prohibited from disclosing social security numbers, even when the subjects of the records objected to disclosure. In Seelig v. Sielaff [200 AD2d 298 (1994)], the lower court enjoined a New York City agency from releasing the social security numbers of correction officers without their written consent pursuant to the Personal Privacy Protection Law. While the Appellate Division agreed that disclosure of social security numbers would result in an unwarranted invasion of correction officers' privacy, the Court unanimously reversed and vacated the judgment because the agency involved is an entity of local government and, therefore, is not subject to the Personal Privacy Protection Law or prohibited from disclosing social security numbers. Specifically, it was found that:
"The injunctive relief granted by the IAS Court was based upon Public Officers Law §92 (1), part of this State's Personal Privacy Protection Law. That law by its own terms excepts the judiciary, the State Legislature, and 'any unit of local government' from its purview. Consequently, the relief granted against the respondents was improper" (id., 299).
I note that the same provision specifically excludes the judiciary from the coverage of the Personal Privacy Protection Law.
In short, while a state agency that is subject to the Personal Privacy Protection Law is obliged to protect against disclosures to the public that would constitute an unwarranted invasion of personal privacy [see Freedom of Information Law, §§87(2)(b) and 89(2); Personal Privacy Protection Law, §96(1), neither an entity of local government nor a court is currently required to do so.
In short, based on my understanding of the situation that you described, it appears that a county clerk is required to make the electronic records at issue available to DataTrace or to any person.
I hope that I have been of assistance.
Robert J. Freeman