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FOIL-AO-17520

February 9, 2009

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.

Dear

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Village of Atlantic Beach.

            Specifically, you requested copies of building permits issued in a particular year and were denied access to portions of those records based on the Village’s conclusion that disclosure to you would result in an unwarranted invasion of the personal privacy of the owners and occupants. On behalf of the Village, in his denial of your appeal, the Village attorney described you as “politically active in the Village”, drawing the inference that if the information is made available to you, you may proceed “to publicly spotlight the properties, their owners, or occupants, in a preferred political context (i.e., with contentions that may or may not be legally and factually accurate.” By equating your potential use of the records to “commercial or fund-raising purposes”, the Village determined that full disclosure of the records to you would create a “likelihood of harassment of homeowners or occupants sufficient to declare that a failure to redact would - to a reasonable person of ordinary sensibilities - be an offensive and objectionable invasion of their personal privacy.” Accordingly, the Village denied access to the lot numbers and address numbers (but not street names) of the properties in question.

            We disagree with the Village’s interpretation of the law, and in this regard, offer the following comments.

            First, 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 section 87(2)(a) through (j) of the law. In our view, building permits should ordinarily be disclosed in their entirety, for none of the grounds for denial would apply.

            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) provides a series of examples of unwarranted invasions of personal privacy, one of which had pertained 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, in effect at the time of you request, 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 building permits are requested for commercial purposes, it appears that the Village could withhold the names or other identifying details of those to whom the permits were issued. Alternatively, where the applicant has not requested the permits for a commercial or fund-raising purpose, the agency may not rely on this provision to deny access. In keeping with this judicial interpretation, the authority to require that an applicant submit such certification has now been codified in §89(3)(a), which now states in relevant part:

“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.”

            Second, the information that the Village proposes to redact is required to be made public by the Village through another avenue. Long before the enactment of the Freedom of Information Law, it was established by the courts that records pertaining to the assessment of real property are generally available [see e.g., Sears Roebuck & Co. v. Hoyt, 107 NYS 2d 756 (1951); Sanchez v. Papontas, 32 AD 2d 948 (1969).

In the case of a request for an assessment roll, §89(6)is pertinent, for that provision 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."

            Therefore, 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. 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, Real Property Tax Law, §516. Since the assessment roll must be disclosed pursuant to the Real Property Tax Law, the restriction concerning lists of names and addresses in the Freedom of Information Law was found to be inapplicable.

            In his denial of your appeal, the Village attorney refers to an Appellate Division decision, Dobranski v. Houper (154 AD 2d 736 [1989]). In Dobranski, it was found that the test for determining what constitutes an unwarranted invasion of personal privacy is "what would be offensive and objectionable to a reasonable man of ordinary sensibilities", and that such a determination involves "balancing the competing interests of public access and individual privacy" (id., 737). While we agree with the standard expressed therein, in our opinion, the information that you have requested relates to structures, construction, and properties, not information that is highly intimate or personal. Further, where the information is required to be made available pursuant to a different law or by means of judicial precedent, in our opinion there is no basis for applying such a balancing test.

            Finally, another amendment to §89(2)(b) in August of 2008 specifies that:

“(iv) when a record or group of records relates to the right, title or interest in real property, or relates to the inventory, status or characteristics of real property, in which case disclosure and providing copies of such record or group of records shall not be deemed an unwarranted invasion of personal privacy.”

            While this provision might not apply to the situation at hand, it would clearly apply to all similar requests in the future.

            On behalf of the Committee on Open Government, we hope that this is helpful to you.

                                                                                   Sincerely,

 

                                                                                    Camille S. Jobin-Davis
                                                                                    Assistant Director

CSJ:jm

cc: Charles Kovit
Board of Trustees