June 6, 2007
I have received your letter and the materials attached to it. You referred to a denial by the Town of Oyster Bay of your request for copies of both sides of a check made out to the Town by a property tax payer. The Town relied on an opinion rendered by this office in which it was advised that portions of a check indicating a person’s bank account number could be withheld on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [Freedom of Information Law, §§87(2)(b), 89(2)(b)]. It is your view that the opinion is incorrect and should be reversed. You cited a judicial decision relating to disclosure of the item in question and suggested that the decision “holds that bank records are not private at all” [Norkin v. Hoey, 181 AD2d 248 (1992)].
I continue to believe that disclosure of an individual’s personal bank account number may be withheld when requested pursuant to the Freedom of Information Law. The decision that you cited involved the standing of the subject of such a record to challenge disclosure when the record is sought through the issuance of a subpoena. As you know, in general, the recipient of a subpoena has no choice but to disclose unless it is successfully contended that the record sought is not material to a proceeding. The Freedom of Information Law, in contrast, pertains to rights of access conferred upon the public at large or the ability of an agency to withhold records, irrespective of the status or interest of the applicant for the records. As stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the Civil Practice Law and Rules (CPLR). Specifically, it was found that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request.
"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].
Based upon the foregoing, there may be instances in which records are accessible pursuant to the Freedom of Information Law but not the disclosure devices associated with litigation, and vice versa. Norkin clearly dealt with disclosure of the item at issue in a litigation context and, consequently, I believe that it is irrelevant in considering a request for the same item under the Freedom of Information Law.
With respect to privacy, it is noted that the court in Norkin alluded to an interest in protecting privacy, stating that:
“While, as indicated, the overwhelming weight of authority in this State holds that a bank customer is without standing to challenge a third-party subpoena, particularly where incidental to a government entity’s investigative activities as is here the case, it must be noted that there have been some manifestations of an underlying discomfort with the facial unfairness of depriving a bank customer of any recourse, including standing, for disclosure of financial information concerning the customer’s personal bank accounts which are widely believed to be confidential” (id., 253; emphasis mine).
Although the court decided the controversy in relation to standing, it clearly recognized that “financial information concerning the customer’s personal bank accounts” is ordinarily unavailable, absent a subpoena or other disclosure requirement associated with litigation. From my perspective, that recognition suggests that in other circumstances, disclosure would be “unwarranted.” In the context of the Freedom of Information Law, particularly in consideration of the fact that account numbers may serve as codes employed to make deposits, withdrawals or engage in other financial transactions, I reiterate the view that disclosure would constitute an unwarranted invasion of personal privacy for purposes of the Freedom of Information Law.
Lastly, since reference was made to §96 of the Public Officers Law, I note that §96 is part of the Personal Privacy Protection Law, which applies only to state agencies and specifically excludes units of local government from its coverage [see §92(1)].
I hope that the foregoing serves to clarify your understanding of the Freedom of Information Law.
Robert J. Freeman
cc: Hon. John Venditto