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FOIL-AO-17909

                                                                                                November 30, 2009

E-Mail

TO:                 

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 information presented in your correspondence.

Dear

            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to a request received by the Town for a copy of the “names and addresses of all property owner grievances filed… in the year 2009” from a candidate who ran for Town Supervisor.  You asked whether disclosure would constitute an unwarranted invasion of personal privacy, in light of an amendment to the Freedom of Information Law enacted in 2008.  We offer the following comments with respect to two amendments adopted in 2008, one with respect to privacy and the other to records related to interests in real property.

            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 NY2d 75, 80 (1984)].

            The only exception to the principles described above involves a 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, as recently amended, §89(2)(b) 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 solicitation or fund-raising purposes" [§89(2)(b)(iii)].

            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. Due to the language of §89(2)(b)(iii), however, 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 2008, the Legislature amended the above provision, replacing the word “commercial” with “solicitation”, largely in response, in our opinion, to a decision rendered by the Court of Appeals in 2007 [Data Tree, LLC v Romaine, 9 NY3d 454].  In that case, “a commercial provider of online public land records”, sought land records from Suffolk County in an “electronic format” (id., at 460).  The Court confirmed that the interest or use of records is largely irrelevant in determining rights of access conferred by the Freedom of Information Law.  It also held that a denial of access may not be justified when records would be used for a commercial use; rather, the court limited the ability  to deny access to those instances in which a list of names and addresses is sought in order to “solicit...business.”  Specifically, it was found that:

“...FOIL does not require the party requesting the information to show any particular need or purpose (see Matter of Daily Gazette Co. v. City of Schenectady, 93 NY2d 145, 156 [1999]; Farbman, 62 NY2d at 80).  Data Tree’s commercial motive for seeking the records is therefore irrelevant in this case and constitutes an improper basis for denying the FOIL request.

We note, however, that motive or purpose is not always irrelevant to a request pursuant to FOIL.  Public Officers Law §89(2)(b)(iii) includes as an ‘unwarranted invasion of personal privacy’ the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fundraising purposes’ (emphasis added; see Matter of Federation of N.Y. State Rifle & Pistol Clubs v. New York City Police Dept., 73 NY2d 92 [1989] [organization’s request denied under FOIL for use in direct mail membership solicitation of names and addresses of persons holding rifle or shotgun permits]).  That particular exemption does not apply in this case however because Data Tree is not seeking a list of names and addresses to solicit any business.  Rather, Data Tree is seeking public land records for commercial reproduction on line” (id., 463).

            In sum, based on the preceding analysis and the corresponding statutory amendment, it is our opinion that a request for records for campaign purposes may not be characterized as having been made for  “solicitation”, as it was intended by the State Legislature, and further, unless a list of names and addresses would be used for the purpose of soliciting business from those identified on the list, §89(2)(b)(iii) of the Freedom of Information Law cannot be asserted as a basis for denying access.

            In addition, and perhaps more importantly, among other changes adopted in 2008, the Legislature further defined records that if disclosed would cause an unwarranted invasion of personal privacy.  Section 89(2)(c) now sets forth in pertinent part:

“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.”

            In short, the Legislature clarified that disclosure of records relating to the right, title or interest in real property would not constitute an unwarranted invasion of personal privacy.  Accordingly, it is our opinion that disclosure of records indicating the names and addresses of persons who challenge real property tax assessments would not constitute an unwarranted invasion of personal privacy, and that the records should be disclosed.

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

 

CSJ:jm