July 11, 1995
Mr. Charles Apotheker
County of Rockland Department of Law
Allison-Parris County Office Building
New City, NY 10956
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 Mr. Apotheker:
I have received your letter of June 29 in which you raised questions concerning the disclosure of names and/or addresses of veterans residing in Rockland County.
Specifically, you wrote that:
"An individual has requested the names and addresses of those veterans who recently received a 50th anniversary victory pin. The Director of the Veterans' Service Agency objects, based on certain sections of the Federal Register which he believes restrict his office from revealing the names and addresses of veterans for any purpose.
"My review of these sections of the Federal Register indicate that while the Department of Veterans' Affairs could not reveal this information, it is not clear whether those regulations would prevent a FOIL request on our local agency limited to names and addresses. We have determined that a list does exist of these particular veterans and their addresses. It is our understanding that the government is not required to create a list that does not exist, but must furnish a list that does exist unless barred by sections of law. Would the sections of federal regulations apply? If a list of names may be foiled, can the addresses be revealed as well?"
In this regard, I offer the following comments.
First, certificates of honorable discharge may be filed, pursuant to law, with county clerks. Section 250 of the Military Law states in relevant part that a certificate of honorable discharge "may be recorded in any one county, in the office of the county clerk, and when so recorded shall constitute notice to all public officials of the facts set forth therein."
Second, having contacted the United States Department of Veterans Affairs approximately a year ago concerning a similar inquiry, I was informed that there is no federal statute that would require that certificates of honorable discharge or related records be sealed or that prohibits disclosure of the kind of information at issue. Further, based on my inquiry, I believe that federal regulations to which you referred pertain to particular kinds of records concerning veterans that are maintained by the federal government.
Third, the New York Freedom of Information Law, which applies to records maintained by state and local agencies, 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.
While a veteran may record a certificate of honorable discharge with a county clerk pursuant to §250 of the Military Law, §79-g of the Civil Rights Law states that:
"a. Notwithstanding the provisions of any general, special or local law to the contrary, any person filing a certificate of honorable discharge in the office of a county clerk shall have the right to direct the county clerk to keep such certificate sealed.
b. Thereafter, such certificate shall be made available to the veteran, a duly authorized agent or representative of such veteran or the representative of the estate of a deceased veteran but shall not be available for public inspection."
When a veteran directs that his or her certificate of honorable discharge filed with a county clerk be sealed, the record would be specifically exempted from disclosure by statute [see Freedom of Information Law, §87(2)(a)]. In other circumstances, i.e., when veterans do not direct that certificates of honorable discharge be sealed, I believe that those records must be disclosed. In short, none of the grounds for denial could appropriately be cited to withhold certificates of honorable discharge, absent direction to seal the records conferred by §79-g of the Civil Rights Law.
Lastly, 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)].
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, including the potential for commercial use, 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 principles described above involves the protection of personal privacy. By way of background, §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." Further, §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 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); 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 assert that a list of names and addresses would 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.).
As such, there is precedent indicating that an agency may inquire with respect to the purpose of a request when the request involves a list of names and addresses. That situation, however, represents the only case under the Freedom of Information Law in which an agency may inquire as to the purpose for which a request is made, or in which the intended use of the record has a bearing upon rights of access.
In sum, I believe that names and addresses of veterans who have been honorably discharged must generally be disclosed, unless the records are sealed under §79-g of the Civil Rights Law or a request involves a list of veterans' names and addresses. In that latter situation, an agency may in my opinion ascertain whether the list would be used for a commercial or fund-raising purpose, and if it would be so used, the list could justifiably be withheld.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman