August 5, 2008
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 information presented in your correspondence.
I have received your letter in which you indicated that your town operates a food bank. The facility is owned and maintained by the town, and you asked whether a log identifying those who request food is subject to the Freedom of Information Law.
In this regard, 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 (j) of the Law.
Of relevance under the circumstances is §87(2)(b), which enables an agency to withhold records or portions of records the disclosure of which would result in “an unwarranted invasion of personal privacy.” While I believe that the Freedom of Information Law is intended to ensure that government is accountable, the privacy provisions of the Law in my view enable government to prevent disclosures concerning the personal or intimate details of individuals’ lives. If, for example, applicants for food must meet an income requirement, it is likely, in my opinion, that a court would determine the names of applicants could be withheld. From my perspective, a disclosure that permits the public to determine the general income level of persons who apply would constitute an unwarranted invasion of personal privacy, for such a disclosure would indicate that a particular individual has an income or economic means below a certain level. In some circumstances, individuals might be embarrassed by such a disclosure. Further, by means of analogy, the New York State Tax Law contains provisions that require the confidentiality of records reflective of the particulars of a person’s income or payment of taxes (see e.g., §697, Tax Law).
In short, if indeed there is an income qualification and only those persons whose income is below is certain level can apply, I believe that disclosure would constitute an unwarranted invasion of personal privacy and that the log may be withheld.
I hope that the foregoing enhances your understanding of the matter and that I have been of assistance.