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July 30, 1993

 

 

Mr. Gerry Galbreath
Regulatory Agency Management Systems
8789 San Jose Boulevard, Suite 103
Jacksonville, FL 32217

The staff of 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.

Dear Mr. Galbreath:

As you are aware, your letter of July 14 addressed to the
Attorney General has been forwarded to the Committee on Open
Government. The Committee is authorized to provide advice
concerning the State's Freedom of Information Law.

According to your letter, your requests for lists or computer
tapes containing the names and addresses of licensees have been met
with "a variety of responses." You have asked whether those kinds
of records are available to the public generally or whether their
use is "restricted."

In this regard, I offer the following comments.

First, 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 (i) of the Law.

Second, 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 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in
litigation against an agency requested records from that agency
under the Freedom of Information Law. In brief, it was found that
one's status as a litigant had no effect upon that person's right
as a member of the public when using the Freedom of Information
Law, irrespective of the intended use of the records. Similarly,
unless there is a basis for withholding records in accordance with
the grounds for denial appearing in §87(2), the use of the records,
including the potential for commercial use, is in my opinion
irrelevant; when records are accessible, once they are disclosed,
the recipient may do with the records as he or she sees fit.

Third, the only exception to the principles described above
involves 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, §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
commercial or fund-raising purposes"
[§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an
internal conflict in the law. As indicated earlier, the status of
an applicant or the purposes for which a request is made are
irrelevant to rights of access, and an agency cannot inquire as to
the intended use of records. However, due to the language of
§89(2)(b)(iii), 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 a case involving a list of names and addresses in which the
agency inquired as to the purpose of which the list was requested,
it was found that an agency could make such an inquiry.
Specifically, in Golbert v. Suffolk County Department of Consumer
Affairs (Supreme Court, Suffolk County, September 5, 1980), the
Court cited and apparently relied upon an opinion rendered by this
office in which it was advised that an agency may appropriately
require that an applicant for a list of names and addresses provide
an indication of the purpose for which a list is sought. In that
decision, it was stated that:

"The Court agrees with petitioner's attorney
that nowhere in the record does it appear that
petitioner intends to use the information
sought for commercial or fund-raising
purposes. However, the reason for that
deficiency in the record is that all efforts
by respondents to receive petitioner's
assurance that the information sought would
not be so used apparently were unsuccessful.
Without that assurance the respondents could
reasonably infer that petitioner did want to
use the information for commercial or fund-raising purposes."

In addition, it was held that:

"[U]nder the circumstances, the Court finds
that it was not unreasonable for respondents
to require petitioner to submit a
certification that the information sought
would not be used for commercial purposes.
Petitioner has failed to establish that the
respondents denial or petitioner's request for
information constituted an abuse of discretion
as a matter of law, and the Court declines to
substitute its judgement for that of the
respondents" (id.).

As such, there is precedent indicating that an agency may inquire
with respect to the purpose of a request when the request involves
a list of names and addresses. That situation, however, represents
the only case under the Freedom of Information Law in which an
agency may inquire as to the purpose for which a request is made,
or in which the intended use of the record has a bearing upon
rights of access.

Fourth, it is likely that among agencies' concerns is
compliance with the Personal Privacy Protection Law, which applies
only to state agencies, but not units of local government. In
brief, under §96 of that statute, a state agency is precluded from
disclosing personal information, except in conjunction with certain
exceptions authorizing disclosure. Further, when §96 of the
Personal Privacy Protection Law is read in conjunction with §89(2-a) of the Freedom of Information Law, a state agency is prohibited
from releasing records when it determines that disclosure would
constitute "an unwarranted invasion of personal privacy." Section
89(2-a) states that:

"Nothing in this article shall permit
disclosure which constitutes an unwarranted
invasion of personal privacy as defined in
subdivision two of this section if such
disclosure is prohibited under section ninety-six of this chapter."

It is emphasized that the provision pertaining to lists of
names and addresses pertains only to lists identifying natural
persons, as opposed to business entities, for example. Therefore,
a list of nursing homes regulated by the State Department of
Health, for instance, would be available, for it would not identify
natural persons.

Lastly, if a statute other than the Freedom of Information Law
specifically directs or prohibits disclosure of certain records,
that statute would prevail over the Freedom of Information Law.
For example, the Election Law directs that voter registration lists
are available. Because a statute pertaining to particular lists
requires disclosure, those lists must be made available,
notwithstanding the provisions of the Freedom of Information Law.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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