August 7, 1995
Hon. Jeremiah T. Hayes
Onondaga County Clerk
Syracuse, NY 13202
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. Hayes:
As you are aware, I have received your letter of July 18 in which you referred to an advisory opinion prepared last year concerning access to certificates of honorable discharge filed by veterans with county clerks.
You wrote that the United States Department of Defense began to use social security numbers as unique identifiers for military personnel in the 1970's and that "the number that appears on the Honorable Discharge is the individual's social security number which in turn falls under the provisions of the Federal Privacy Act." You indicated that you "would like to allow public access to these documents on one hand, while on the other, [you] do not want to be in violation of the Privacy Act." Since the matter involves all county clerks, you asked that I "get a legal opinion and have a standard policy designated by the Secretary of State."
In this regard, the Secretary of State does not have the authority to create or impose a policy upon county clerks. Nevertheless, Secretary Treadwell serves as a statutory member of the Committee on Open Government, and the Committee is authorized by law [Public Officers Law, §89(1)(b)] to furnish opinions concerning access to government records. Further, as indicated above, the staff of the Committee is designated to prepare advisory opinions on its behalf. Please consider the ensuing remarks to constitute such an opinion.
By way of background, §250 of the Military Law, which has remained unchanged for nearly forty years, states that any certificate of honorable discharge issued after April 6, 1917 "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." As such, although there is no requirement that they do so, veterans may file certificates of honorable discharge with county clerks. The more recent filings, perhaps those within the last twenty years, include social security numbers.
Based on my understanding of the federal Privacy Act (5 U.S.C. §552a), it has no application in the situation at issue. That statute pertains to the collection and disclosure of personally identifiable information by federal agencies. The only aspect of the Act that applies to state and local governments involves social security numbers, and §7 of the Act states that:
"(a)(1) [I]t shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security number.
(2) the provision of paragraph (a) of this subsection shall not apply with respect to --
(A) any disclosure which is required by Federal Statute, or
(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual
(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it."
The quoted provision places limitations upon the collection and use of social security numbers by federal, state and local governments, and unless "grandfathered in" under the Privacy Act, agencies cannot require the submission of social security numbers, except in conjunction with social security or other statutorily authorized purposes. As indicated earlier, there is no requirement that veterans file certificates of honorable discharge with county clerks; on the contrary, any such filings are purely voluntary. That being so, I do not believe that the filing or disclosure of certificates of honorable discharge by county clerks is in any way subject to the federal Privacy Act.
Moreover, a veteran who chooses to file a certificate of honorable discharge with a county clerk has the ability direct that it be sealed pursuant to §79-g of the Civil Rights Law. That provision 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."
Although the Freedom of Information Law is based on a presumption of access, the first ground for denial would authorize county clerks to shield from the public certificates or honorable discharge that have been sealed based on the direction to do so by a veteran. Section 87(2)(a) pertains to records that are "specifically exempted from disclosure by state or federal statute." Section 79-g of the Civil Rights Law is such a statute, and if direction to seal is given by a veteran, a county clerk would be prohibited from disclosing, notwithstanding the provisions of the Freedom of Information Law.
When there is no direction by a veteran to seal a certificate of honorable discharge, that record, like all others, would be subject to rights conferred by the Freedom of Information Law. As I understand the content of such a record, the only item that could be withheld would be the social security number. It has been held that local government agencies may withhold social security numbers on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)], but that they not required to do so [Silage v. Sielaff, 201 A.D. 2d 298 (1994)]. As a general matter, even though a local government agency, i.e., a county, may withhold records or portions thereof in appropriate circumstances, it is not obliged to do so, because the Freedom of Information Law is permissive. As stated by the Court of Appeals, "...while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records...if it so chooses" [Capital Newspapers, v. Burns, 67 NY 2d 562, 567 (1986)]. Therefore, while I believe that a local government agency may delete social security numbers from records that are otherwise available, the Freedom of Information Law would not prohibit a county clerk from disclosing certificates of honorable discharge in their entirety, unless those records are sealed under §79-g of the Civil Rights Law.
If there is a concern that veterans who filed certificates of honorable discharge with county clerks will be the subjects of commercial solicitation, the Freedom of Information Law includes a provision that addresses that kind of situation. 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)].
The only exception to the principles described above relates to the protection of personal privacy. As indicated earlier, §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 suggested above, the status of an applicant and 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); 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 for a list of names and addresses provide an assurance that a list of names and addresses will 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.).
Based on the foregoing, if it is determined that certificates of honorable discharge are requested for commercial purposes, it appears that county clerks could justifiably deny the request.
In sum, first, I do not believe that the federal Privacy Act is applicable or serves as a bar to disclosure of certificates of honorable discharge, even when those records include social security numbers. Second, a veteran has the ability to direct that a certificate of honorable discharge be sealed, in which case the record would be exempt from public disclosure. Third, absent direction to seal the certificate, it would be subject to the Freedom of Information Law, in which case, it could be disclosed with or without the social security number. And fourth, if a request is made for a list of names of those who filed certificates with a county clerk, or the equivalent, the request could be denied if it is made for commercial or fund-raising purposes.
I hope that the foregoing will be useful to you and other county clerks and that I have been of assistance. Should any questions arise, please feel free to contact me.
Robert J. Freeman