July 10, 1995
Mr. Milton L. Keeney
Sonitrol Security Systems of Buffalo, Inc.
195 Elm Street
Buffalo, NY 14203-2098
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Mr. Keeney:
I have received your letter of June 30 in which you sought guidance in obtaining lists of businesses "that are experiencing excessive false alarms." False alarms have been a significant problem, for as described in a sample local law that you enclosed, they "contribute to ineffective utilization of police, fire and medical emergency responses which are susceptible to high accident rates, interfere with genuine emergencies (responses) and provide unnecessary alarm noise to the surrounding community." Your firm apparently markets an alarm system that "offers a real solution to this problem."
In this regard, I offer the following comments.
First, I point out that the Freedom of Information Law pertains to existing records, and that §89(3) of the Law states in part that an agency need not create a record in response to a request. Therefore, if an agency does not maintain a "list" of businesses experiencing excessive false alarms, it would not be required to prepare a list on your behalf. It is suggested that you request a list, or if no list exists, records identifying businesses that have experienced at least a particular number of false or avoidable alarms during a given period or which have been fined in connection with false alarms or avoidable alarms during that period.
Second, as the Freedom of Information Law pertains to existing records, it 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. In my view, two of the grounds for denial are relevant to an analysis of rights of access. However, one would not apply, and the appropriate assertion of the other would be questionable.
Section 87(2)(b) provides that an agency may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy, one of which involves "sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes." Therefore, in many instances, lists of names and addresses, or records containing equivalent information, may be withheld when they are requested for a commercial purpose. Nevertheless, in my opinion, the privacy provisions do not apply when records identify commercial entities or persons acting in business capacities. From my perspective and based upon judicial interpretations, §87(2)(b) is intended to pertain to natural persons, not entities or persons acting in business capacities. In a decision rendered by the State's highest court, the Court of Appeals, that focuses upon the privacy provisions, the court referred to the authority to withhold "certain personal information about private citizens" [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York City Police Department, 73 NY 2d 92 (1989)]. In a decision involving a request for a list of names and addresses, the opinion of this office was cited and confirmed, and 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" [American Society for the Prevention of Cruelty to Animals v. New York State Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). More recently, in a case concerning records pertaining to the performance of individual cardiac surgeons, the court granted access and cited an opinion prepared by this office in which it was advised that the information should be disclosed since it concerned professional activity licensed by the state (Newsday Inc. v. New York State Department of Health, Supreme Court, Albany County, October 15, 1991). In short, I do not believe that the provisions in the Freedom of Information Law pertaining to the protection of personal privacy could be asserted to withhold the records in question or that disclosure of the information would result in an unwarranted invasion of personal privacy.
The other provision of potential significance, §87(2)(f), states that an agency may withhold records to the extent that disclosure "would endanger the life or safety of any person." In some jurisdictions, residences with alarms might have permits or report in some way to local law enforcement agencies. It has been advised that lists of those residences may be withheld based on considerations of safety. Not only might those residences be jeopardized; perhaps more importantly, potential lawbreakers could identify those who do not have alarms. It can likely be assumed, however, that most businesses utilize some sort of security or alarm system, and many in fact post notices to that effect. Further, when a law enforcement agency responds to an alarm, whether the alarm is based on a real emergency or otherwise, its response is a public event. The presence of a police car can be known to the public, particularly if its siren is on and lights are flashing. Additionally, in the context of the local law that you attached, records indicating fines paid in connection with "avoidable alarm responses" would be public. As such, the identities of firms paying fines can be known by the public.
In short, based on my understanding of the matter and the preceding commentary, records identifying businesses that are experiencing excessive false alarms would in my view likely be available under the Freedom of Information Law.
I hope that I have been of some assistance.
Robert J. Freeman