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November 6, 1995

 

 

James H.K. Bruner, Esq.
112 State Street
Albany, NY 12207

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, unless otherwise indicated.

Dear Mr. Bruner:

I have received your letter of October 11 in which you sought assistance concerning a client who is interested in obtaining the following information:

"1. Full name of winners of Lotto Game since its inception.

2. Current address of each winner.

3. Amount of initial award to each winner. 4. Date Lotto award was made to each winner."

You contend that the records sought must be disclosed in view of certain regulations promulgated by the Lottery. Specifically, 21 NYCRR §2803.12 states that "each prize winner grants to the director the right to use name, city of residence and photograph in order to publicize his winnings," and that "The name and city of residence of prize winners shall be regarded as public information."

In this regard, I offer the following comments.

First, to put the matter in perspective, it is noted at the outset that 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. One of the grounds for denial, §87(2)(b), enables an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy.

Also relevant to an analysis of rights of access or, conversely, the ability of the Lottery to deny access to the records sought, is the Personal Privacy Protection Law. That statute deals in part with the disclosure of records or personal information by 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 that statute, 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)].

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, §96(1)(c), involves a case in which 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". Consequently, 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; alternatively, if disclosure of a record would not constitute an unwarranted invasion of personal privacy and if the record is available under the Freedom of Information Law, it may be disclosed under §96(1)(c). Therefore, the sole question in my view is whether or the extent to which disclosure would result in an unwarranted invasion of personal privacy.

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, 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)].

The only exception to the principles described above involves a provision pertaining to the protection of personal privacy. As indicated earlier, §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. Although the status of an applicant and the purposes for which a request is made are irrelevant to rights of access and an agency cannot ordinarily inquire as to the intended use of records, 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 for 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 assurance that a list of names and addresses will not be used for commercial or fund-raising purposes. 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.).

While your request does not involve a list per se, it has been held, in essence, that a request for records that would be used to develop a list of names and addresses to be used for a commercial purpose may be denied [see Scott, Sardano & Pomeranz, supra, 65 NY 2d 294 (1985)]. That decision dealt with a request by a law firm for copies of motor vehicle accident reports to be used for the purpose of direct mail solicitation of accident victims. Although the Court of Appeals found that accident reports are available, in view of the intended use of the reports, i.e., to create a mailing list for a commercial purpose, it was determined that names and addresses of accident victims could be withheld based on considerations of privacy. Therefore, if your client is seeking the records in order to develop a mailing list or its equivalent to be used for commercial or fund-raising purposes, §89(2)(b)(iii) may be pertinent to the matter.

Third, having discussed the issue with officials at the Lottery, I was informed that some Lotto winners are identified by name and municipality of residence in press releases; others are not. In my view, in those instances in which the Lottery has taken an action on its own initiative to disclose by means of a press release, the information contained in the release must be disclosed in response to a request made under the Freedom of Information Law. To contend that disclosure of that information some time after its initial issuance would result in an unwarranted invasion of privacy would in my view be inconsistent with the portion of the regulations cited earlier. I do not believe that the Lottery can choose to issue and disseminate press releases identifying winners and concurrently express the view that disclosure of the same information later would constitute a violation of the Personal Privacy Protection Law. Further, in my opinion, if the initial dissemination of the press releases was accomplished in compliance with the Personal Privacy Protection Law, it must be concluded that those disclosures constituted permissible invasions of privacy; otherwise the Lottery would have disclosed in a manner inconsistent with law.

With respect to winners who have not been identified by means of press releases or other information disclosed on the initiative of the Lottery, the result, in terms of rights of access, might be different. If it is your client's intent to develop a mailing list or its equivalent for a commercial or fund-raising purpose, insofar as the names or municipalities of residence of winners have not been disclosed at the initiative of the Lottery, it is likely in my view that those names and addresses could be withheld pursuant to §89(2)(b)(iii) of the Freedom of Information Law.

Lastly, since your client is interested in the current address of each winner, I note that the regulations refer to the "city of residence," not a home address. I would conjecture that disclosure of the names and areas of residence of winners represents a viable method of informing the public that there are real winners and that anyone can win. Absent that kind of disclosure, the public might have no way of knowing whether the Lottery is carrying out its duties appropriately or, in terms of the general intent of the Freedom of Information Law, ensuring government accountability. Disclosure of the name and municipality of residence of a winner by means of a press release issued at or about the time a winner claims a prize ensures that prizes are indeed being claimed and are being distributed.

As I understand the regulations, disclosure by the Lottery does not involve actual home addresses of winners, and in my view, home addresses could be withheld as an unwarranted invasion of personal privacy. Moreover, if, after having begun to receive prize money, a winner changes his or her residence, I believe that the current residence address or the new municipality of residence may be withheld on the same basis. Lottery officials indicated that many winners are harassed and are the subjects of unwanted solicitations and contacts. A denial of access to the current addresses of those winners who have moved would not adversely affect or diminish the accountability of government. However, it would serve to protect against what I believe would be unwarranted invasions of privacy.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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