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December 27, 1995

 

 

Mr. Gene Russianoff, Sr.
Staff Attorney
Mr. Blair Horner, Legislative Director
NYPIRG
146 Washington Avenue
Albany, NY 12210

Mr. Andrew Greenblatt, Executive Director
Common Cause/NYS
150 Nassau Street, Suite 1823
New York, NY 10038

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 Messrs. Russianoff, Horner and Greenblatt:

I have received your letter of December 4 and the news articles attached to it. You have requested an advisory opinion concerning the propriety of a disclosure of a list containing the names, home addresses and home telephone numbers of attorneys employed in the Buffalo office of the Department of Law. Before offering my views of the matter, I note that the Department of Law has taken action to ensure that procedures are followed prior to the disclosure of Department records. Specifically, I was informed that:

"Upon ascertaining that the list had been distributed, Attorney General Vacco immediately conceded that fact, and indicated that such disclosure would not again occur. In that vein, a memorandum has been sent to all Department of Law employees throughout the State indicating that all requests for information (other than press inquiries and case-related inquiries) must be directed to the Records Access Officer or her delegate. The memorandum lists every delegate in the various bureaus and regional offices for the Department of Law, and outlines the procedure to follow when members of the public request information from the Department."

In short, the Department has taken steps to ensure that records are disclosed in a manner fully consistent with law.

According to your letter and an article of November 10 published by the New York Times, the list in question was disclosed to the wife of Attorney General Dennis Vacco. You wrote further that the article indicates that:

"several lawyers who work in the Buffalo office claim that soon thereafter they received at their homes invitations to attend fundraising events for Mark Perla, an Erie County Court judge, described as a close friend of Mr. Vacco. Mrs. Vacco has worked as Mr. Perla's law secretary, as well as on his unsuccessful 1995 reelection campaign. These lawyers say that Mr. Vacco's name is listed as the return address on the fundraising solicitation. The lawyers also stated that they received fundraising calls for Mr. Perla's campaign at their home from someone claiming to call on behalf of the Attorney General."

In an article published the next day, the Times reported that the Attorney General "acknowledged yesterday that his wife had obtained personnel information about lawyers in his office's Buffalo branch and used it to try to raise money for the election campaign of one of Mr Vacco's best friends."

In my opinion, based on the following analysis, the Department of Law could not have validly disclosed a list of its employees' home addresses and home telephone numbers in conjunction with the facts and circumstances that have been presented.

As you suggested in your letter, two statutes, the Freedom of Information Law and the Personal Privacy Protection Law (respectively Articles 6 and 6-A of the Public Officers Law), are pertinent to the matter. Because of the language of those statutes, they must be construed together and in relation to one another.

By way of background, the Freedom of Information Law includes within its coverage 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.

The Personal Privacy Protection Law 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 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 involves a situation 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." 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.

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)]. 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, 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 principle described in the preceding paragraph involves the protection of personal privacy. Section 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," and, §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 ordinarily 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 this instance, according to the description of the events that precipitated your inquiry, a list that included names and home addresses was sought for fund-raising purposes. If that is so, I believe that disclosure would have resulted in an unwarranted invasion of privacy pursuant to §89(2)(b)(iii).

An alternative approach to the matter is based on the judicial interpretation of the Freedom of Information Law. One element of a series of decisions is the finding that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those individuals are required to be more accountable than others. The courts have determined that, as a general rule, records that are relevant to the performance of the official duties of a public officer or employee are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that items relating to public officers or employees are irrelevant to the performance of their official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Seelig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

In my view, the home addresses and particularly the home telephone numbers of public employees are largely irrelevant to the performance of their official duties. If that is so, based on the thrust of case law involving records pertaining to public employees, disclosure of those items would be precluded by law.

It is noted, too, that §89(7) of the Freedom of Information Law states in part that "[n]othing in this article shall require the disclosure of the home address of an officer or employee." While that provision does not refer specifically to the protection of privacy, I believe that it was intended to address that issue.

Lastly, I am mindful of the decision rendered in Buffalo Teachers Federation, Inc. v. Buffalo Board of Education [156 AD2d 1027 (1989]. In that case, petitioners attempted to prohibit a board of education from disclosing the home addresses, as well as other items, of all employees of the Board. The Court held, and I believe correctly so, that "[a]lthough the Board of Education is not required to release the home addresses of its employeesit may, should it choose, grant access to information which is exempt from disclosure under FOIL" (id., 1028). In general, the Freedom of Information Law is permissive, and an agency may disclose records even though it is not obliged to do so [see Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986)].

The distinction between the decisions cited above and the instant matter is that they involved entities of local government, which are specifically excluded from the requirements of the Personal Privacy Protection Law. Because the Department of Law is a state agency subject to that statute, I believe that it is precluded from releasing records the disclosure of which would constitute an unwarranted invasion of personal privacy. Illustrative of the distinction is a decision cited earlier, Seelig v. Sielaff, supra. In Seelig, the lower court enjoined a New York City agency from releasing the social security numbers of correction officers without their written consent. While the Appellate Division agreed that disclosure of social security numbers would result in an unwarranted invasion of correction officers' privacy, the Court unanimously reversed and vacated the judgment, stating that:

"The injunctive relief granted by the IAS Court was based upon Public Officers Law §92 (1), part of this State's Personal Privacy Protection Law. That law by its own terms excepts the judiciary, the State Legislature, and 'any unit of local government' from its purview. Consequently, the relief granted against the respondents was improper" (id., 299).

As such, while a local government may opt to disclose personal information, even when disclosure would result in an unwarranted invasion of personal privacy, a state agency subject to the Personal Privacy Protection Law may be prohibited from so doing.

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

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Hon. Dennis C. Vacco