April 26, 2002
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.
I have received your letter of April 2 and the materials attached to it. You have contended that you have the right to gain access to "daily attendance records" identifying those who participate in the City of Rome's Toddler Participation Program.
From my perspective, the City is not required to disclose records identifiable to individuals based on an age related characteristic.
In this regard, as you are likely aware, 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.
One of the grounds for denial, §87(2)(b), states that government agencies may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." It has consistently been advised that records maintained in relation or identifiable to individuals based on an age related characteristic or qualification may be withheld under that provision. While age may not be considered as an item of intimate personal information to some, it is so considered by others. Further, persons falling within certain age ranges, particularly senior citizens and children, are often most vulnerable and may be the targets of unscrupulous persons or entities. In this instance, since the participants are toddlers, I believe that their names and addresses or those of their parents may clearly be withheld to protect their privacy.
If your interest is determining the extent to which non-residents participate in the program, it may be possible to obtain the zip codes of the participants, without their names and addresses. Through disclosure of the zip codes, you could likely determine the extent of participation by non- residents without obtaining or needing their names and addresses.
As indicated in the letter addressed to you by City officials on March 21, when records include information that may be withheld under the Freedom of Information Law, an applicant does not have the right to inspect them. In that circumstance, an applicant seeking the public portions of the records could be charged a fee for photocopying records following appropriate deletions (see Van Ness v. Center for Animal Care and Control, Supreme Court, New York County, NYLJ, July 7, 2000).
I hope that I have been of assistance.
Robert J. Freeman
cc: Jeanette D. Reid
James S. Rizzo