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Subject: FW: Use of records
Attachments: f13828.wpd

FOIL-AO-19078

From: Freeman, Robert (DOS)
Sent: Wednesday, October 23, 2013 9:22 AM
To:
Cc: 'townclerk@townofislip-ny.gov'
Subject: Use of records

As indicated in the attached opinion, FOIL- AO 13828, the only instance in which a person seeking
records must provide a certification concerning the intended use of the records sought involves a
request for a list of names and addresses. Specifically, §89(2)(b)(iii) of the Freedom of Information
Law (FOIL) states that an “unwarranted invasion of personal privacy” includes the “sale or release of
lists of names and addresses if such lists would be used for solicitation or fund-raising purposes.” That
provision has been construed to pertain to lists of natural persons and their home addresses.

I note that the cited provision had referred to lists of names and addresses that would be used for
“commercial or fund-raising purposes”, and that the term “commercial” was replaced with
“solicitation” in a series of amendments to FOIL enacted in 2008. Among the amendments was an
addition to §89(3)(a), which states that: “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 persons for the purpose of allowing that person to use
lists of names and addresses for solicitation or fund-raising purposes.”

Those changes in the law do not affect the guidance offered in the attached opinion, which advises, in
short, that an agency cannot require a certification concerning the intended use of records or the
completion of the affidavit required by the Town of Islip, except in one circumstance, and that
circumstance would involve a request for a list of names of natural persons and their residence
addresses.

A copy of this response is being sent to the Town Clerk, and you should feel free to share it as you see
fit.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231

(518)474-2518 (p)
(518)474-1927 (f)
robert.freeman@dos.ny.gov
www.dos.ny.gov/coog