November 24, 2009
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 and hope that you will accept my apologies for the delay in response.
You wrote that you asked to view industrial and commercial building permits granted recently by the City of Oswego. The request was denied on the ground that disclosure would constitute an unwarranted invasion of privacy. You have questioned the propriety of that response.
From my perspective, the records sought are accessible under the Freedom of Information Law, irrespective of their intended use. In this regard, I offer the following comments.
By way of background, 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.
Section 87(2)(b) permits an agency, such as the City of Oswego, to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” In turn, §89(2)(b) provides a series of examples of unwarranted invasions of personal privacy, one of which authorizes an agency to withhold a list of names and addresses if the list would be “used for solicitation or fund-raising purposes.”
Judicial decisions involving the interpretation of the provisions cited in the preceding paragraph indicate they are intended to pertain to natural persons, not entities or persons acting in business capacities. In a decision rendered by the Court of Appeals that focuses upon the privacy provisions, the court referred to the authority to withhold "certain personal information about private citizens" [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York City Police Department, 73 NY 2d 92 (1989)]. In another decision, the opinion of this office was cited and confirmed, and the court held that "the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence" [American Society for the Prevention of Cruelty to Animals v. New York State Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). Similarly, in a case concerning records pertaining to the performance of individual cardiac surgeons, the court granted access and cited an opinion prepared by this office in which it was advised that the information should be disclosed since it concerned professional activity licensed by the state (Newsday Inc. v. New York State Department of Health, Supreme Court, Albany County, October 15, 1991).
In short, I do not believe that the provisions in the Freedom of Information Law pertaining to the protection of personal privacy may be asserted to withhold records pertaining to entities other than natural persons. On the contrary, since the records sought relate to commercial entities, I do not believe that any of the grounds for denial would be applicable.
In an effort to enhance understanding of and compliance with the Freedom of Information Law, copies of this opinion will be sent to City officials.
I hope that I have been of assistance.
cc: City Clerk