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October 31, 1995

 

 

Hon. Alex T. LaBrecque
Horesheads Town Justice
150 Wygant Road
Horseheads, NY 14845-1599

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 Justice LaBrecque:

I have received your letter of October 12 and the material attached to it. You wrote that a resident of the Town of Horseheads requested a copy of the Town's list of dog licensees in order "to organize a group to petition the Town Board for modifications (or repeal) of the Dog Ordinance in the Town." The Town denied the request based on the following statement sent to the Town by the State Department of Agriculture and Markets:

"THE FOLLOWING LIST WAS PREPARED BY THE NEW YORK STATE DEPARTMENT OF AGRICULTURE AND MARKETS AND IS SUPPLIED SOLELY FOR THE OFFICIAL USE OF THE MUNICIPALITY IN THE ENFORCEMENT OF ARTICLE 7 OF THE AGRICULTURE AND MARKETS LAW. USE OF THIS LIST FOR ANY OTHER PURPOSE IS NOT AUTHORIZED AND MAY CONSTITUTE AN UNWARRANTED INVASION OF PERSONAL PRIVACY UNDER THE FREEDOM OF INFORMATION LAW SECTIONS 89(2)(B) AND 96(1)(C)."

You have asked whether, in my view, the record in question should be disclosed pursuant to the Freedom of Information Law. Based on the following analysis, I believe that the record must be disclosed.

First, although the Department of Agriculture and Markets prepared the list in conjunction with its statutory duties, once the list is in the physical custody of a municipality, such as a town, I believe that it becomes a "record" of the town. Here I point out that §86(4) of the Freedom of Information Law defines the term "record" to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Since the Town is an "agency" [see §86(3)], the list transmitted to the Town by the Department in my view constitutes a record of the Town that is subject to rights of access granted by the Freedom of Information Law. Moreover, even though a record may be maintained by two or more agencies, any of those agencies in receipt of a request for the record would be required to respond to a request in accordance with the Freedom of Information Law.

Second, in a related vein, while a record may be prepared or "supplied solely for official use", an assertion of confidentiality, absent specific statutory authority, is essentially meaningless. When confidentiality is conferred by statute, records fall outside the scope of rights of access pursuant to §87(2)(a) of the Freedom of Information Law, which states that an agency may withhold records that "are specifically exempted from disclosure by state or federal statute." In this instance, however, I do not believe that any statute specifically exempts the records in question from disclosure. If that is so, the records are subject to whatever rights exist under the Freedom of Information Law [see Doolan v. BOCES, 48 NY 2d 341 (1979); Washington Post v. Insurance Department, 61 NY 2d 557 (1984); Gannett News Service, Inc. v. State Office of Alcoholism and Substance Abuse, 415 NYS 2d 780 (1979)]. In short, without appropriate statutory authority, I do not believe that the Department can impose restrictions on a town's use or dissemination of a list in possession of a town, even though the list was prepared by and sent to a town by the Department.

Third, the text quoted earlier states that disclosure of the list "may constitute an unwarranted invasion of personal privacy under the Freedom of Information Law." While a denial on that basis may be justified in some instances, it may not be appropriate in others.

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 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); 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.

Based on the information that you presented, I believe that the Town could seek assurances in writing that the list would not be used for a commercial or fund-raising purpose. From my perspective, in this instance, since the list would be used to gain support to petition the Town Board, there would be no basis for a denial of access. In other words, because the list would not be used for a commercial or a fund-raising purpose, it would be available under the Law.

Lastly, the statement from the Department of Agriculture and Markets referred to §96(1)(c). That reference involves a provision within the Personal Privacy Protection Law. That statute, however, pertains only to records maintained by state agencies [see definition of "agency", §92(1)]. Therefore, it does not apply to a list in possession of the Town.

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

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Joan A. Kehoe, Counsel