April 22, 2008
FROM: Camille S. Jobin-Davis, Assistant 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.
Thank you for the information regarding FOIL-AO-16777, a very brief opinion prepared in September of 2007, regarding access to a list of residential email addresses collected by a town to provide residents with “information about town events and commerce.” In that opinion, we advised that such a list could be withheld based on a contention that disclosure would constitute an unwarranted invasion of personal privacy. Since then, various scenarios have been described with respect to public access to a list of email addresses pertaining to individuals in their private capacities. In an effort to clarify our opinion on these and other related issues, we offer the following comments.
First, and most importantly, 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.
As a general matter, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the State's highest court, has held 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 government 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" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
The only exception to the principles described above involves one provision pertaining to the protection of personal privacy. By way of background, §87(2)(b) of the Freedom of Information Law permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) of the law provides a series of examples of unwarranted invasions of personal privacy, one of which pertains to:
"sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes" [§89(2)(b)(iii)].
The provision quoted above represents what might be viewed as an internal conflict in the law. As indicated earlier, the status of an applicant and the purposes for which a request is made are irrelevant to rights of access, and an agency cannot ordinarily inquire as to the intended use of records. However, due to the language of §89(2)(b)(iii), rights of access to a list of names and addresses, or equivalent records, may be contingent upon the purpose for which a request is made [see Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162 (1983)].
In a case involving a list of names and addresses in which the agency inquired as to the purpose for which the list was requested, it was found that an agency could make such an inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this office in which it was advised that an agency may appropriately require that an applicant for a list of names and addresses provide an assurance that a list of names and addresses will not be used for commercial or fund-raising purposes. In that decision, it was stated that:
"The Court agrees with petitioner's attorney that nowhere in the record does it appear that petitioner intends to use the information sought for commercial or fund-raising purposes. However, the reason for that deficiency in the record is that all efforts by respondents to receive petitioner's assurance that the information sought would not be so used apparently were unsuccessful. Without that assurance the respondents could reasonably infer that petitioner did want to use the information for commercial or fund-raising purposes."
In addition, it was held that:
"[U]nder the circumstances, the Court finds that it was not unreasonable for respondents to require petitioner to submit a certification that the information sought would not be used for commercial purposes. Petitioner has failed to establish that the respondents denial or petitioner's request for information constituted an abuse of discretion as a matter of law, and the Court declines to substitute its judgement for that of the respondents" (id.).
Based on the foregoing, if it is determined that a list of names and addresses of private individuals is requested for commercial purposes, it appears that an agency could deny access based on §89(2)(b)(iii) as an unwarranted invasion of personal privacy.
There are statutes that require specific records be made available to the public, including names and residence addresses, with no exceptions. Section 89(6) of the Freedom of Information Law states that:
“Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity to any party to records.”
As such, if records are available as of right under a different provision of law or by means of judicial determination, nothing in the Freedom of Information Law can serve to diminish rights of access [see e.g., Kwitny v. McGuire, 53 NY2d 968 (1981); Szikszay v. Buelow, 436 NYS 2d 558, 583 (1981)].
Subdivision (1) of §5-602 of the Election Law, for example, specifically requires that a “board of elections shall cause to be published a complete list of names and residence addresses of the registered voters for each election district over which the board has jurisdiction"; subdivision (2) states that "The board of elections shall cause a list to be published for each election district over which it has jurisdiction"; subdivision (3) requires that at least fifty copies of such lists shall be prepared, that at least five copies be kept "for public inspection at each main office or branch of the board", and that "other copies shall be sold at a charge not exceeding the cost of publication."
Similarly, in Szikszay v. Buelow [436 NYS 2d 558, 583 (1981)], it was determined that an assessment roll maintained on computer tape must be disclosed, even though the applicant requested the tape for a commercial purpose, because that record is independently available under a different provision of law, §516 of the Real Property Tax Law. Since the assessment roll must be disclosed pursuant to the Real Property Tax Law, the commercial or fund-raising restriction concerning lists of names and addresses in the Freedom of Information Law was found to be inapplicable.
With respect to a list of names and home addresses of those persons who receive a municipal newsletter, it is our opinion that such a list would not be required to be released when disclosure is requested for commercial or fund-raising purposes. A more difficult question arises when disclosure is not requested for a commercial or fund-raising purpose. There are no controlling statutes or judicial decisions with respect to this issue. In light of the above cited statutory requirements for disclosure of names and home address information for election and assessment purposes, in our opinion, disclosure of the identities of those who receive a newsletter would not cause an unwarranted invasion of personal privacy.
The effect of disclosure of email addresses is different than disclosure of residential home addresses, and in our view, significantly different than disclosure of home telephone or personal mobile phone numbers. In our opinion, disclosure of a home telephone or personal mobile phone number would result in an unwarranted invasion of personal privacy in most instances, because of the possibility of unwanted interruptions. As evidenced by the existence of unlisted telephone numbers, and the dearth of directory information regarding mobile phone numbers, it is our opinion that many prefer to limit access to their personal telephone numbers. Unlike unwanted mail sent through the U.S. Postal Service which can easily be recycled or ignored, a telephone call, by nature, interrupts. Accordingly, in our opinion, disclosure of home and mobile telephone numbers would cause an unwarranted invasion of personal privacy in most every instance.
In our opinion, email communications involve a lesser invasion of privacy than a phone call or contact at a person’s home address, because an email address does not divulge the geographic location of a person’s home, and in many instances may not include a person’s name or other identifying information. We know of individuals who maintain multiple email accounts, reserving one for internet business and another for social communications, and we believe that everyone receives unwanted emails at some point or another. Accordingly, we believe disclosure of an email address would be less likely to cause an unwarranted invasion of personal privacy than disclosure of a home address or a home or mobile telephone number.
We 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. Should an agency deny access to a list of email addresses collected for purposes of distributing information, in our opinion it is likely that, without more, an agency could not meet the burden of proving that disclosure would cause an unwarranted invasion of personal privacy.
In sum, it is our opinion that disclosure of a list or email addresses would not result in an unwarranted invasion of personal privacy if a request is not made for a commercial or fund raising purpose.
On behalf of the Committee on Open Government, we hope this is helpful to you.
cc: Stephen Hughes
Association of Towns