December 16, 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 your “FOIL request to the Division of the Budget in 2008 was, for reasons unknown to [you], shared with the NYS Higher Education Services Corporation”, your employer. The request contained your “contact information”, including an unlisted phone number.
In this regard, I offer the following comments.
First, 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 (k) of the Law. From my perspective, with the exception of portions of certain kinds of requests, the record in question would be accessible to the public under the law.
In my view, the only instances in which the requests made pursuant to the Freedom of Information Law may be withheld in part would involve situations in which, due to the nature of their contents, disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §§87(2)(b) and 89(2)]. For instance, if a recipient of public assistance seeks records pertaining to his or her participation in a public assistance program, disclosure of the request would itself indicate that he or she has received public assistance. In that case, I believe that identifying details could be deleted to protect against an unwarranted invasion of personal privacy.
As stated by the Court of Appeals, the exception in the Freedom of Information Law pertaining to the protection of personal privacy involves details about one's life "that would ordinarily and reasonably be regarded as intimate, private information" [Hanig v. State Department of Motor Vehicles, 79 NY2d 106, 112 (1992)]. In most instances, a request or the correspondence pertaining to it between the agency and the applicant for records does not include intimate information about the applicant. For example, if a request is made for an agency's budget, the minutes of a meeting of a town board, or an agency's contract to purchase goods or services, the request typically includes nothing of an intimate nature about the applicant. Further, many requests are made by firms, associations, or persons representing business entities. In those cases, it is clear that there is nothing "personal" about the requests, for they are made by persons acting in a business or similar capacity (see e.g., American Society for the Prevention of Cruelty to Animals v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, Nay 10, 1989; Newsday v. NYS Department of Health, Supreme Court, Albany County, October 15, 1991).
Second, although your telephone number appears in the request, there is no indication that it is an unlisted number.
Lastly, the Personal Privacy Protection Law prohibits the disclosure of personal information found within records by state agencies, unless the disclosure is permitted in accordance with §96(1) of that statute. However, the term “record” is defined for purposes of that statute in§92(9) to exclude “correspondence files,” From my perspective, unsolicited correspondence sent by individuals to a state agency are not “records” that fall within the mandatory protections required by the Personal Privacy Protection Law. Further, one of the exceptions that authorizes disclosure, §96(1)(c), pertains to instances in records are accessible under the Freedom of Information Law, which, as suggested earlier, is so, except in those instances in which a request for records includes intimate personal information.
I hope that the foregoing serves to clarify your understanding and that I have been of assistance.