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FOIL-AO-18160

                                                                                                June 22, 2010

The Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence,  unless otherwise indicated.


Dear


           This is in response to your letter seeking an advisory opinion concerning application of the Freedom of Information Law to records requested from the Town of Hempstead. Specifically, the Town repeatedly denied access to a list of “all licensed plumbers in the town of Hempstead (not requesting any personal info such as address or phone numbers-just names and their respective corporations).” The Deputy Town Attorney, by correspondence dated June 8, 2010 (copy attached), has indicated that he may provide the requested list without corporate identifying information, or deny access to the list by June 18, 2010.

            In this regard, 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 (k) of the Law.

            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)] (emphasis added.) 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 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) of the Law 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 this provision, replacing the word “commercial” with “solicitation.” Related to it, the legislature added the following language to §89(3)(a):

“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.”

           Accordingly, it is our opinion that an agency may require such certification when responding to a request for a list of names and addresses of individuals and their residential addresses.  

           More importantly, there are several judicial decisions, both New York State and federal, that pertain to records about individuals in their business or professional capacities and which indicate that the records are not of a "personal nature." For instance, one involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons". 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. In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."

           In another decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested. Although the Department provided statistics relating to surgeons, it withheld their identities. In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed. The court agreed and cited the opinion rendered by this office.

           Like the Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy. Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In construing that provision, federal courts have held that the exception:

"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'. Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature. Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4. Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573- 573 (1980)].

           In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it was stated pointedly that: "The privacy exemption does not apply to information regarding professional or business activities...This information must be disclosed even if a professional reputation may be tarnished" [Cohen v. EPA, 575 F.Supp. 425, 429 (1983)]. Similarly in a case involving disclosure of the identities of those whose grant proposals were rejected, it was held that:

"The adverse effect of a rejection of a grant proposal, if it exists at all, is limited to the professional rather than personal qualities of the applicant. The district court spoke of the possibility of injury explicitly in terms of the applicants' 'professional reputation' and 'professional qualifications'. 'Professional' in such a context refers to the possible negative reflection of an applicant's performance in 'grantsmanship' - the professional competition among research scientists for grants; it obviously is not a reference to more serious 'professional' deficiencies such as unethical behavior. While protection of professional reputation, even in this strict sense, is not beyond the purview of exemption 6, it is not at its core" [Kurzon v. Department of Health and Human Services, 649 F.2d 65, 69 (1981)].

           In short, in our opinion and as suggested in the decisions cited above, the exception concerning privacy, including §89(2)(b)(iii), does not apply to a list of plumbers. Historically, information pertaining to those persons or entities obtaining licenses, permits and similar certifications has been available to the public, for it is intended to enable the public to know that those persons or entities are qualified to engage in certain activities in which the government has a substantial interest. The fact that a license has been issued to engage in the practice of a variety of professions (i.e., medicine, law, architecture, social work, etc.) and other kinds of activities, (i.e., selling real estate, being a barber or cosmetologist, perhaps a plumber, driving an automobile or possessing a firearm) involve matters all of which enable the public to know that the recipient has met the required conditions for licensure or engaging in certain activities.

           Lastly, with respect to the Town’s “Application for Public Access to Records” form, there is nothing in the Freedom of Information Law that requires that a person seeking records must use an agency’s prescribed form or make a request utilizing official or personal stationary. That being so, although use of the Town of Hempstead’s  FOIL form might be of benefit to a person seeking Town records, we do not believe that the Town may require those seeking records to use the Town’s form. Although you did not appeal the denial of your request to the Town’s FOIL Appeals Officer, there is no basis, in our opinion, for a denial of access to the requested record. Consequently, in our opinion, the Town should provide the record to you.

           We hope that we have been of assistance.

                                                                                                   Sincerely,

 

                                                                                                   Camille S. Jobin-Davis
                                                                                                   Assistant Director

 

CSJ:KC:jm

Enc.

cc:  John E. Rottkamp
Frederick A. Amorini