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June 1, 1994

 

 

Mr. Matthew Chiccuarelli
Manager of Educational Research
CMG Information Services
P.O. Box 7000
Wilmington, MA 01887-7000

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. Chiccuarelli:

I have received your letter of May 2 in which you requested an
advisory opinion concerning the Freedom of Information Law.

According to your letter and the materials attached to it, CMG
Information Services has sought from the State Education Department
"a current listing of all certified public school teachers, where
they teach, and what subjects and/or grades they teach and a
listing of school administrators with their job title or function."
You specified that CMG is not interested in obtaining home
addresses or phone numbers. In response to the request, you were
informed that the State Education Department does not maintain a
list of its public school teachers "by subject area", and that to
prevent unwarranted invasions of personal privacy, the Department
"has ruled out that sale or release of lists of names and addresses
for private, commercial or fund-raising purposes."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing
records. Section 89(3) of the Law provides that an agency need
not, except in unusual circumstances, create or prepare a record in
response to a request.

When information is maintained electronically, in a computer,
for example, it has been advised that if the information sought is
available under the Freedom of Information Law and may be retrieved
by means of existing computer programs, an agency is required to
disclose the information. In that kind of situation, the agency in
my view would merely be retrieving data that it has the capacity to
retrieve. Disclosure may be accomplished either by printing out
the data on paper or perhaps by duplicating the data on another
storage mechanism, such as a computer tape or disk. On the other
hand, if information sought can be retrieved from a computer or
other storage medium only by means of new programming or the
alteration of existing programs, those steps would, in my opinion,
be the equivalent of creating a new record. As stated earlier,
since §89(3) does not require an agency to create a record, I do
not believe that an agency would be required to reprogram or
develop new programs to retrieve information that would otherwise
be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218
(1991)].

In conjunction with the foregoing, if the State Education
Department does not maintain or cannot generate a list including
each of the elements that you requested, I do not believe that it
would be obliged to create such a list on your behalf. It is
suggested that you confer with the appropriate officials at the
Department in an effort to ascertain the nature of information that
it maintains concerning public school teachers and the format in
which it is kept or may be generated. With that information, it is
likely that you will have the ability to submit a proper request.

Second, insofar as the information in which you are interested
exists or can be generated, I point out that 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 §87(2)(a) through (i) of the Law.

Third, 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.

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 occupational 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, 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, although the
information in question would be identifiable to particular
individuals, it would pertain solely to their roles as public
employees and/or 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 public employees
certified to teach at their business addresses. 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.

Lastly, much of the information that you seek must be
maintained and made available by school districts as employers of
teachers. As indicated earlier, with certain exceptions, the
Freedom of Information Law does not require an agency to create
records. Section 89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of
Information Law] shall be construed to require
any entity to prepare any record not in
possession or maintained by such entity except
the records specified in subdivision three of
section eighty-seven..."

However, a payroll list of employees is included among the records
required to be kept pursuant to "subdivision three of section
eighty-seven" of the Law. Specifically, that provision states in
relevant part that:

"Each agency shall maintain...

(b) a record setting forth the name, public
office address, title and salary of every
officer or employee of the agency..."

As such, a payroll record that identifies all officers or employees
by name, public office address, title and salary must be prepared
to comply with the Freedom of Information Law. Payroll information
has been found by the courts to be available [see e.g., Miller v.
Village of Freeport, 379 NYS 2d 517, 51 AD 2d 765, (1976); Gannett
Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NYS 2d 954
(1978)]. In Gannett, supra, the Court of Appeals held that the
identities of former employees laid off due to budget cuts, as well
as current employees, should be made available. In addition, this
Committee has advised and the courts have upheld the notion that
records that are relevant to the performance of the official duties
of public employees are generally available, for disclosure in such
instances would result in a permissible as opposed to an
unwarranted invasion of personal privacy [Gannett, supra; Capital
Newspapers v. Burns, 109 AD 2d 292, aff'd 67 NY 2d 562 (1986) ;
Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk
Cty., NYLJ, October 30, 1980; Farrell v. Village Board of Trustees,
372 NYS 2d 905 (1975) ; and Montes v. State, 406 NYS 664 (Court of
Claims 1978)]. As stated prior to the enactment of the Freedom of
Information Law, payroll records:

"...represent important fiscal as well as
operation information. The identity of the
employees and their salaries are vital
statistics kept in the proper recordation of
departmental functioning and are the primary
sources of protection against employment
favortism. They are subject therefore to
inspection" Winston v. Mangan, 338 NYS 2d 654,
664 (1972)].

In short, a record identifying agency employees by name, public
office address, title and salary must in my view be maintained and
made available.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Gene Snay
Leonard D. Powell