From: Jobin-Davis, Camille (DOS)
Sent: Wednesday, December 31, 2008 11:27 AM
Subject: Freedom of Information Law
First, the following are links to advisory opinions regarding financial disclosure statements:
Additional opinions can be found utilizing the FOIL index of advisory opinions, on our website, under “F” for Financial Disclosure Statements.
Second, with respect to the issue of a certification that the applicant will not use a list of names and addresses for solicitation or fund-raising purposes, section 89(3)(a) of the Freedom of Information Law now provides as follows:
3. (a) Each entity subject to the provisions of this article, within five business days of the receipt
of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. An agency may require a person requesting lists of names and addresses to provide a written certification that such person will not use such lists of names and addresses for solicitation or fund-raising purposes and will not sell, give or otherwise make available such lists of names and addresses to any other person for the purpose of allowing that person to use such lists of names and addresses for solicitation or fund-
raising purposes. If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy
if so requested, or as the case may be, shall certify that it does not have possession of such record
or that such record cannot be found after diligent search. Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven and subdivision three of section eighty-eight of this article. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.
If the applicant fails to provide such certification, the agency has the authority to deny access to the names and addresses based on an unwarranted invasion of personal privacy. For further analysis with respect to the privacy issue, prior to the 2008 amendment underlined above, please see the following: http://docs.dos.ny.gov/coog/ftext/f12362.htm
Third, with respect to disclosure of a person’s home address and telephone number for a boat slip, this will confirm my opinion, that if copies of boat slip permits containing names, home address and home telephone numbers are not requested for solicitation or fund-raising purposes, the Town could deny access to the home telephone number based on the reasoning in the following opinion: http://docs.dos.ny.gov/coog/ftext/f12191.htm.
I hope that these are helpful to you. Please let me know if you have further questions.
Happy New Year!
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State