October 17, 1995
Ms. Debra D. O'Gorman
Dechert Price & Rhoads
477 Madison Avenue
New York, NY 10022-5891
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. O'Gorman:
I have received your letter of September 15 concerning a request for certain records of the New York State Lottery ("the Lottery").
You represent a firm that is in the business of purchasing lottery prize winnings in exchange for a lump sum payment, and the firm requested copies of press releases issued by the Lottery pertaining to a certain category of jackpot winners during a specified period. The request was denied by the Lottery's Records Access Officer on the ground that disclosure "would be an unwarranted invasion of personal privacy." You appealed, and the appeal was denied for several reasons, all of which focus on provisions pertaining to the protection of privacy. In addition to references to the Freedom of Information Law and the Personal Privacy Protection Law, the determination of the appeal referred to a section of the Lottery's regulations, 21 NYCRR §2803.12, and it was stated that:
"The intent of the regulation is to permit the use of the name, city of residence, and photograph of a Lottery prize winner only 'to publicize his winnings.' The regulation does not provide for the use of such information for any purpose other than announcing the prize award at the time the award is made, and the regulation cannot and should not be interpreted as diminishing the protections for personal privacy embodied in the Personal Privacy Protection Law and the Freedom of Information Law."
In this regard, to put the matter in perspective, it is noted at the outset that the Freedom of Information Law pertains to all agency records and 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), enables an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Additionally, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy, two of which were cited by the Lottery and will be discussed later.
As suggested in the determination of your appeal, relevant to an analysis of rights of access or, conversely, the ability of the Lottery to deny access to the records sought, is the Personal Privacy Protection Law. That statute deals in part with the disclosure of records or personal information by agencies concerning data subjects. A "data subject" is "any natural person about whom personal information has been collected by an agency" [Personal Privacy Protection Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data subject which, because of name, number, symbol, mark or other identifier, can be used to identify that data subject" [§92(7)]. For purposes of that statute, the term "record" is defined to mean "any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject" [§92(9)].
With respect to disclosure, §96(1) of the Personal Privacy Protection Law states that "No agency may disclose any record or personal information", except in conjunction with a series of exceptions that follow. One of those exceptions, §96(1)(c), involves a case in which a record is "subject to article six of this chapter [the Freedom of Information Law], unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter". Section 89(2-a) of the Freedom of Information Law states that "Nothing in this article shall permit disclosure which constitutes an unwarranted invasion of personal privacy as defined in subdivision two of this section if such disclosure is prohibited under section ninety-six of this chapter". Consequently, if a state agency cannot disclose records pursuant to §96 of the Personal Protection Law, it is precluded from disclosing under the Freedom of Information Law; alternatively, if disclosure of a record would not constitute an unwarranted invasion of personal privacy and if the record is available under the Freedom of Information Law, it may be disclosed under §96(1)(c). Therefore, the sole question in my view is whether disclosure of the press releases would result in an unwarranted invasion of personal privacy. Due to the nature of that standard, it is subject conflicting interpretations, and equally reasonable people may have different opinions as to whether disclosure of the same item of personal information would constitute a permissible as opposed to an unwarranted invasion of personal privacy. In this instance, due to the nature of press releases, it is my opinion that the records that you requested must be disclosed.
One of the examples of an unwarranted invasion of personal privacy cited in the denial of your appeal, §89(2)(b)(iii), pertains to the "sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes." While the request does not involve a list per se, it has been held, in essence, that a request for records that would be used to develop a list of names and addresses to be used for a commercial purpose may be denied [see Scott, Sardano & Pomeranz v. Records Access Officer of the City of Syracuse, 65 NY 2d 294 (1985)]. That decision dealt with a request by a law firm for copies of motor vehicle accident reports to be used for the purpose of direct mail solicitation of accident victims. Although the Court of Appeals found that accident reports are available, in view of the intended use of the reports, i.e., to create a mailing list for a commercial purpose, it was determined that names and addresses of accident victims could be withheld based on considerations of privacy.
From my perspective, several factors distinguish the instant situation from that involving the solicitation of accident victims. In this case, the request does not involve home addresses, and the press releases do not apparently contain home addresses of winners; accident reports generally include home addresses. Unlike the City of Syracuse, which sought to determine rights of access only after a request had been made to obtain copies of the reports, the Lottery prepares and disseminates press releases, on its own initiative, that identifies winners by name and municipality of residence. In my opinion, once a press release is issued, the contents of the release are in the public domain, and the Lottery could not justifiably contend that disclosure would result in an unwarranted invasion of personal privacy.
Although the facts are different, an analogy may be made to a situation in which a request was made for records, i.e., statements of witnesses in a criminal investigation, that could ordinarily be withheld under the Freedom of Information Law but which were submitted into evidence in a public judicial proceeding. In that case, it was found that "once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public" [(Moore v. Santucci, 151 AD 2d 677,679 (1989)]. In the instant case, the press releases have been disseminated and presumably their contents have been aired on television and radio and published in newspapers at any number of locations in the state. To suggest that the same information can be withheld now as an unwarranted invasion of personal privacy after it has been so widely disseminated and accessible is, in my view, unjustifiable.
The other provision of relevance, which was also cited in the determination, §89(2)(b)(iv), states that an unwarranted invasion of privacy includes "disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it." In my view, notwithstanding the effects of disclosure, the names of winners of lottery jackpots are relevant to the work of the agency. In terms of the general intent of the Freedom of Information Law, providing a means of ensuring government accountability, disclosure of the names and areas of residence of winners represents a viable method of informing the public that there are real winners and that anyone can win. Absent that kind of disclosure, the public might have no way of knowing whether the Lottery is carrying out its duties appropriately. For that reason, I believe that disclosure of winners' names is relevant to the work of the Lottery.
It may be true that lottery winners are subjected to unwanted and vexatious contacts and solicitations. Nevertheless, on the back of each lotto ticket is a statement indicating, in brief, that those who play are subject to the Lottery's regulations. Reference was made earlier to 21 NYCRR §2803.12, which is entitled "Publicity release." That provision states in part that "Each prize winner grants to the director the right to use his name, city of residence, and photograph in order to publicize his winnings." As such, lottery winners have, perhaps tacitly, consented to disclosure of information about them.
Further, notwithstanding the purported intent of that provision, it includes the following statement: "The name and city of residence of prize winners shall be regarded as public information..." To contend that disclosure of a press release some time after its initial issuance would result in an unwarranted invasion of privacy would in my view be inconsistent with the statement quoted above. I do not believe that the Lottery can choose to issue and disseminate press releases identifying winners and concurrently express the view that disclosure of the same records later would constitute a violation of the Personal Privacy Protection Law. How can the Lottery contend that disclosure of a record now would constitute a violation of the Personal Privacy Protection Law when disclosure of the same record previously did not constitute a violation? In my opinion, if the initial dissemination of the press releases was accomplished in compliance with the Personal Privacy Protection Law, it must be concluded that those disclosures constituted permissible invasions of privacy; otherwise the Lottery would have disclosed in a manner inconsistent with law.
In sum, for the reasons expressed above, I believe that the Freedom of Information Law requires disclosure of the press releases that you requested. I hope that I have been of assistance.
Robert J. Freeman
cc: Russell V. Gladieux, Executive Deputy Director
William Murray, Counsel