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December 27, 1996

Hon. Shirley Murray
Town Clerk
Town of Wilton
22 Traver Road
Gansevoort, NY 12831-9127

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 Ms. Murray:

I have received your letter of November 20 in which you sought guidance concerning a request made under the Freedom of Information Law.

Specifically, you were asked to provide copies of a voter registration list that the Town purchased from the Saratoga County Department of Data Processing. You indicated that the person requesting the list intends to use the list as a mailing list for commercial activity.

In this regard, as a general matter, the reasons for which a request is made and an applicant's potential use of records are irrelevant, and it has been held that if records are accessible, they should be made equally available to any person, without regard to status or interest [see e.g., M. Farbman & Sons v. New York City, 62 NYS 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. However, §89(2)(b)(iii) of the Freedom of Information Law permits an agency to withhold "lists of names and addresses if such list would be used for commercial or fund-raising purposes" on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Due to the language of that provision, the intended use of a list of names and addresses may be relevant, and case law indicates that an agency can ask that an applicant certify that the list would not be used for commercial purposes as a condition precedent to disclosure [see Golbert v. Suffolk County Department of Consumer Affairs, Sup. Ct., Suffolk Cty., (September 5, 1980); also, Siegel Fenchel and Peddy v. Central Pine Barrens Joint Planning and Policy Commission, Sup. Cty., Suffolk Cty., NYLJ, October 16, 1996].

Nevertheless, §89(6) of the Freedom of Information Law states that:

"Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity to any party to records."

As such, if records are available as a right under a different provision of law or by means of judicial determination, nothing in the Freedom of Information Law can serve to diminish rights of access [see e.g., Szikszay v. Buelow, 436 NYS 2d 558, 583 (1981)]. Of potential relevance in this instance is §5-602 of the Election Law, entitled "Lists of registered voters; publication of", which states that voter registration lists are public. Specifically, subdivision (1) of that statute provides in part that a "board of elections shall cause to be published a complete list of names and residence addresses of the registered voters for each election district over which the board has jurisdiction"; subdivision (2) states that "The board of elections shall cause a list to be published for each election district over which it has jurisdiction"; subdivision (3) requires that at least fifty copies of such lists shall be prepared, that at least five copies be kept "for public inspection at each main office or branch of the board", and that "other copies shall be sold at a charge not exceeding the cost of publication." As such, §5-602 of the Election Law directs that lists of registered voters be prepared, made available for inspection, and that copies shall be sold. There is no language in that statute that imposes restrictions upon access in conjunction with the purpose for which a list is sought or its intended use.

Since §5-602 of the Election Law confers unrestricted public rights of access to voter registration lists, in my opinion, nothing in the Freedom of Information Law could be cited to restrict those rights. Further, as a general matter, I believe that a statute pertaining to a specific subject prevails over a statute pertaining to a general subject. A statute in the Election Law that pertains to particular records would in my view supersede a statute pertaining to records generally, such as the Freedom of Information Law.

It is emphasized that the provisions of the Election Law cited above pertain to voter registration lists prepared and maintained by county boards of elections, not to agencies generally. Therefore, if the list in question would clearly be used for a commercial purpose, it might be contended that the Town could deny access in accordance with §89(2)(b)(iii) of the Freedom of Information Law. However, the same information could be acquired by any person, irrespective of the intended use, from the County Board of Elections. In short, while the Town may have the authority to deny access, a denial might merely delay an inevitable disclosure by the County Board of Elections.

Lastly, the Freedom of Information Law is permissive. Stated differently, even when a local government agency has the ability to withhold a list of names and addresses that is sought for a commercial purpose, it is not required to do so and may choose to disclose.

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

Sincerely,

 

Robert J. Freeman
Executive Director

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