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March 22, 1996

 

 

Daniel T. Smith, Esq.
Art Tennyson Road
Chestertown, NY 12817

Ms. June Maxam
Box 408
Chestertown, NY 12817

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. Smith and Ms. Maxam:

I have received your letters, which are dated, respectively, March 4 and March 6. The issue involves a request by Ms. Maxam to the Town of Chester for the "Names of all dog licenses issued between 12/30/95 and 1/31/96 with validation number, date issued and to whom."

Mr. Smith, in his capacity as Town Attorney, wrote that the Town has "been advised that all records in reference to dog licenses are the property of the State Department of Agriculture and Markets and are '...solely for official use in the enforcement of Article 7 of the Agriculture and Markets Law.'" Mr. Smith also questioned the obligation of the Town to prepare a list and whether disclosure would contravene the provisions of the Personal Privacy Protection Law. Ms. Maxam contended that she did not request a list and that license records are generally public.

I believe that I am familiar with the statement made by the Department of Agriculture and Markets to which Mr. Smith referred. If my assumption is accurate, that statement indicates that:

"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)."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing records, and §89(3) of that statute provides in part that an agency need not create a record in response to a request. Therefore, if, for example, a list is requested and no such list exists, an agency would not be required to prepare a list or a new record on behalf of an applicant. In this instance, it does not appear that a list was requested or that the Town was asked to prepare a list.

Second, although the Department of Agriculture and Markets prepares various documents in conjunction with its statutory duties, when those documents come into physical custody of a municipality, such as a town, I believe that they become "records" 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)], any document 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.

Third, 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 record in possession of a town, even though the record might have been prepared by and sent to a town by the Department.

Fourth, 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, 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.

It has consistently been advised that licenses and similar, related kinds of records are available to the public, even though they identify particular individuals. From my perspective, various activities are licensed due to some public interest in ensuring that individuals or entities are qualified to engage in certain activities, such as teaching, selling real estate, owning firearms, practicing law or medicine, etc., as well as owning a dog and ensuring that the dog is cared for appropriately. I believe that licenses and similar records are available, for they are intended to enable the public to know that an individual has met appropriate requirements to be engaged in an activity that is regulated by the state or in which the state has a significant interest.

The standard in the Freedom of Information Law pertaining to the protection of privacy in my opinion is flexible and agency officials must, in some instances, make subjective judgments when issues of privacy arise. However, it is clear that not every item within a record that identifies an individual may be withheld. Disclosure of intimate details of peoples' lives, such as medical information, one's employment history and the like, might, if disclosed, constitute an unwarranted invasion of personal privacy; nevertheless, other types of personal information maintained by an agency, particularly those types of information that are relevant to an agency's duties, would if disclosed often result in a permissible rather than an unwarranted invasion of personal privacy.

In this instance, if I correctly understand the matter, the records would be available, for disclosure would, in my opinion, result in a permissible rather than an unwarranted invasion of personal privacy.

Names and addresses of licensees have been found to be available in Kwitny v. McGuire [53 NY 2d 968 (1981)] involving pistol licenses, American Broadcasting Companies v. Siebert [442 NYS 2d 855 (1981)] involving licensed check cashing businesses, Herald Company v. NYS Division of the Lottery [Supreme Court, Albany County, November 16, 1987] involving licensed lottery agents and New York State Association of Realtors, Inc. v. Paterson [Supreme Court, Albany County, July 15, 1981] involving licensed real estate brokers and salespeople. In short, I believe that records identifiable to licensees are generally accessible to the public.

Lastly, the statement from the Department of Agriculture and Markets referred to §96(1)(c), which is 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 records in possession of the Town and would not prohibit the Town from disclosing the records.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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