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October 20, 1993

 

 

Hon. Caroline W. Corwin
Town Clerk
Town of New Castle
200 South Greeley Avenue
Chappaqua, NY 10514

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 Ms. Corwin:

I have received your letter of September 1. Please accept my
apologies for the delay in response.

Having reviewed an advisory opinion prepared by this office
concerning access to building plans, you wrote that you would feel
"uncomfortable" in providing copies of those records. You added
that, in the past, the Town's policy has been to preclude copying
building plans unless the owner of the property provides consent,
and it is your view that the policy should be upheld "for the
reasons of invasion of privacy and for the security of that home
owner."

You have asked my views on the subject, and in this regard, I
offer the following comments.

First, in general, whether the subject of a record prefers to
authorize or preclude disclosure is, in my opinion, irrelevant in
terms of an analysis of rights conferred by the Freedom of
Information Law. In a case in which a law enforcement agency
permitted persons reporting incidents to indicate on a form their
preference concerning the agency's disclosure of the incident to
the news media, the Appellate Division found that, as a matter of
law, the agency could not withhold the record based upon the
"preference" of the person who reported the offense. Specifically,
in Johnson Newspaper Corporation v. Call, Genesee County Sheriff,
115 AD 2d 335 (1985), it was found that:

"There is no question that the 'releasable
copies' of reports of offenses prepared and
maintained by the Genesee County Sheriff's
office on the forms currently in use are
governmental records under the provisions of
the Freedom of Information Law (Public
Officers Law art 6) subject, however, to the
provisions establishing exemptions (see,
Public Officers Law section 87[2]). We reject
the contrary contention of respondents and
declare that disclosure of a 'releasable copy'
of an offense report may not be denied, as a
matter of law, pursuant to Public Officers Law
section 87(2)(b) as constituting an
'unwarranted invasion of personal privacy'
solely because the person reporting the
offense initials a box on the form indicating
his preference that 'the incident not be
released to the media, except for police
investigative purposes or following arrest'."

Moreover, although the issue did not involve law enforcement, the
Court of Appeals has held that a request for or a promise of
confidentiality is all but meaningless; unless one or more of the
grounds for denial appearing in the Freedom of Information Law may
appropriately be asserted, the record sought must be made available
[see Washington Post v. New York State Insurance Department, 61 NY
2d 557, 567 (1984)].

Second, building plans per se contain no personal information
concerning an individual. Consequently, I do not believe that
those kinds of records could be withheld on the ground that
disclosure would constitute an unwarranted invasion of personal
privacy under §87(2)(b) of the Freedom of Information Law.
However, in certain circumstances, those plans may include
reference to alarms or security systems, for example, and it is
possible that §87(2)(f) might be asserted. That provision
authorizes an agency to withhold records when disclosure would
"endanger the life or safety of any person." In general, however,
I believe that building plans are available, and they were public
records even before the enactment 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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