January 9, 2008
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.
I have received your letter and hope that you will accept my apologies for the delay in response.
You referred to a person seeking records pursuant to the Freedom of Information Law who asked that identifying details within her request be withheld from the public. Nevertheless, a copy of the request was made available to a member of the Village Board of Trustees. You have sought an opinion concerning the propriety of disclosure of the request to the trustee and to the general public should a request for that record be made.
In this regard, first, assuming that the trustee sought the record at issue in relation to the performance of his/her official duties, I do not believe that disclosure in that circumstance could be equated to release of the record to the general public following a request made pursuant to the Freedom of Information Law. Absent a statutory prohibition concerning disclosure of the record, and there would be none in this instance, a disclosure to a government officer in the performance of that person’s duties would, in my view, be appropriate and not inconsistent with law.
Second, as you are aware, 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 (j) of the Law. From my perspective, with the exception of portions of certain kinds of requests, those kinds of records would be accessible to the public under the law.
In my view, the only instances in which the records at issue may be withheld in part would involve situations in which, due to the nature of their contents, disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)]. For instance, if a recipient of public assistance seeks records pertaining to his or her participation in a public assistance program, disclosure of the request would itself indicate that he or she has received public assistance. In that case, I believe that identifying details could be deleted to protect against an unwarranted invasion of personal privacy.
As stated by the Court of Appeals, the exception in the Freedom of Information Law pertaining to the protection of personal privacy involves details about one's life "that would ordinarily and reasonably be regarded as intimate, private information" [Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 112 (1992)]. In most instances, a request or the correspondence pertaining to it between the agency and the applicant for records does not include intimate information about the applicant. For example, if a request is made for an agency's budget, the minutes of a meeting of a municipal board, or an agency's contract to purchase goods or services, the request typically includes nothing of an intimate nature about the applicant. Further, many requests are made by firms, associations, or persons representing business entities. In those cases, it is clear that there is nothing "personal" about the requests, for they are made by persons acting in a business or similar capacity (see e.g., American Society for the Prevention of Cruelty to Animals v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, Nay 10, 1989; Newsday v. NYS Department of Health, Supreme Court, Albany County, October 15, 1991).
Third, it has been held that an individual’s “preference” concerning the disclosure is largely irrelevant [see Johnson Newspaper Corp. v. Call, 115 AD2d 335 (1985)]. When records are accessible by law, personal preferences inconsistent with law are of no significance.
Lastly, the Freedom of Information Law is permissive; even in situations in which an agency may withhold records or portions of records, it is not obliged to do so [see Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. Therefore, even if the Village could withhold the record on the ground that disclosure would constitute an unwarranted invasion of personal privacy [see §87(2)(b)], it would not be required to do so.
I hope that I have been of assistance.
Robert J. Freeman