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Jim Baldwin May 16, 1994

Bob Freeman

List of Cosmetologists

Having received your note concerning disclosure of lists
of licensees, I agree that it is appropriate to revisit the
issue. The question, in my view, is whether a list of
licensees that includes names and licensees' business
addresses would, if disclosed, constitute an unwarranted
invasion of personal privacy.

From my perspective, if a list identifying people (humans
as opposed to business entities) includes their home
addresses, it should be withheld. However, if a list
identifies persons holding business licenses and their
business addresses (the locations where the licensed activity
occurs), I question whether the information is "personal" or
whether it could justifiably be withheld, irrespective of its
intended use.

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to all
agency records and 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 (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 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); Federation of New York State
Rifle and Pistol Clubs, Inc. v. New York City Police Dept., 73
NY 2d 92 (1989); 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.

Also of potential significance is the Personal Privacy
Protection Law, which deals in part with the disclosure of
records or personal information by state agencies concerning
data subjects. A "data subject" is "any natural person about
whom personal information has been collected by an agency"
[Personal Privacy Protection Law, §92(3)]. "Personal
information" is defined to mean "any information concerning a
data subject which, because of name, number, symbol, mark or
other identifier, can be used to identify that data subject"
[§92(7)]. For purposes of the Personal Privacy Protection
Law, the term "record" is defined to mean "any item,
collection or grouping of personal information about a data
subject which is maintained and is retrievable by use of the
name or other identifier of the data subject" [§92(9)]. In
most instances in which an agency seeks personal information
from a data subject, it must inform that person of the routine
uses and disclosures of the data [see Personal Privacy
Protection Law, §94(1)(d)]. However, that requirement does
not apply with regard to most functions relating to licensing.

With respect to disclosure, §96(1) of the Personal
Privacy Protection Law states that "No agency may disclose any
record or personal information", except in conjunction with a
series of exceptions that follow. One of those exceptions
involves when a record is "subject to article six of this
chapter [the Freedom of Information Law], unless disclosure of
such information would constitute an unwarranted invasion of
personal privacy as defined in paragraph (a) of subdivision
two of section eighty-nine of this chapter". Section 89(2-a)
of the Freedom of Information Law 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".
Therefore, if a state agency cannot disclose records pursuant
to §96 of the Personal Protection Law, it is precluded from
disclosing under the Freedom of Information Law. Further, the
foregoing in my opinion indicates that the relationship
between the Freedom of Information Law and the Personal
Privacy Protection Law is somewhat circular and that,
consequently, the sole question in many situations is whether
the disclosure of the items in question would result in an
unwarranted invasion of personal privacy.

There are several judicial decisions, both New York State
and federal, which in my opinion are relevant, that pertain to
records about individuals in their business or professional
capacities. 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 more recent 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"
(supra, 429). Similarly in a case involving disclosure 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 an 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)].

The standard in the New York Freedom of Information Law,
as in the case of the federal Act, is subject to conflicting
points of view, and reasonable people often differ with
respect to issues concerning personal privacy. In this
instance, the information in question, although identifiable
to particular individuals, pertains solely to their roles as
licensees acting in a business capacity. Unlike an
individual's social security number or medical records
identifiable to patients, which would involve unique and
personal details of people's lives, the records in question
are not "personal" in my opinion; rather, again, they deal
with functions carried out by individuals in their capacities
as persons licensed to do business for gain. In short, as
suggested in the decisions cited above, the exception
concerning privacy arguably does not extend to the kind of
information at issue. If that is so, disclosure would not
constitute an unwarranted invasion of personal privacy.

Not all licenses are business licenses, and some lists of
licensees would, in my view, fall within the coverage of the
privacy provisions. For instance, Department of Environmental
Conservation maintains lists of people who have obtained
hunting and fishing licenses; certain county clerks and law
enforcement agencies maintain lists of those who hold pistol
licenses. Those kinds of lists identify people in a
"personal" capacity and by means of their home addresses.
Consequently, requests for those lists may be rejected when a
request involves a commercial or fund-raising purpose (see
Federation of New York State Rifle and Pistol Clubs, supra).

On the other hand, as suggested earlier, when a list
involves persons licensed to engage in a certain kind of
business and includes the address indicating where the
licensed activity occurs, I believe that personal privacy
implications are minimal, if they exist at all (see ASPCA,
supra).

If it is determined that disclosure of the list in
question would not result in an unwarranted invasion of
personal privacy, it would be available to anyone, for any
purpose.

If you would like to discuss the matter, I am at your
service.

RJF:pb
cc: Gail Bates