January 8, 2015
The staff of the Committee on Open government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Village of Springville. Specifically, you requested records related to a neighboring property and its nonconforming use. In a somewhat unusual response, the Village “objected” and denied access to certain records, provided others, and has not responded to your appeal. Because the Village has, in our opinion, failed to comply with certain primary components of the Freedom of Information Law, we offer the following.
First, as you may be aware, the Freedom of Information Law pertains to agency records, and §86(3) of that statute defines the term "agency" to mean:
“any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”
The Village of Springville is a public corporation performing a governmental function and is thereby an “agency” subject to the Freedom of Information Law. As such, it is subject to all of the rights and responsibilities under the law.
In response to your request for copies of records related to electric, sewer and water usage at the property, the Village relied on advice offered by this office in FOIL-AO-7882, in which we noted that a public utility corporation is not an “agency” as defined in the law, and is therefore not subject to the Freedom of Information Law. Reliance on the advice offered in this opinion is therefore misplaced.
We note that the Village operates a water, sewer and electric fund. Accordingly, should these utilities be provided by the Village, and the Village maintains records related to usage and billing, in our opinion, they are records subject to FOIL.
To the extent that the Village denied access to such records based on the Personal Privacy Protection Law, we note that the Personal Privacy Protection Law does not apply to villages or other local government entities, only to state agencies.
As a general matter, 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 (l) of the Law.
To the extent that the Village has denied access to records regarding utility payments made to the Village, it is our opinion that there is no basis to deny access to such records. In addition to the reasons given above, the Village indicated that “release of such documents is exempted as personal information under FOIL”. We disagree. From our perspective, the records should be disclosed, including the names and addresses of customers who use the utilities.
The only ground for denial pertinent to an analysis of rights of access is §87(2)(b), which enables an agency to withhold records or portions thereof which "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." In our opinion, the use of water or a sewer hardly represents an intimate or personal detail of a person’s life that could, if disclosed, be characterized as an unwarranted invasion of privacy. Further, the records in question had been available under §51 of the General Municipal Law long before the enactment of the Freedom of Information Law. And, analogous information is routinely disclosed in other records. For example, assessment records, which are clearly public, indicate the owner and location of real property, its assessed value, details regarding structures on the property, the amount owed or paid by the owner and whether the owner is delinquent in the payment of taxes. The records in question in our opinion include less information than the assessment records, and disclosure would not be so significant as to result in an unwarranted invasion of privacy.
Section 89(2)(b) contains a series of examples of unwarranted invasions of privacy. The only example relevant to the facts of the situation presented is §89(2)(b)(iv), which 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 construing that provision, it has been found that its language is conjunctive. As stated by the state's highest court, the Court of Appeals, in Gannett Co. Inc. v. County of Monroe, which considered the same provision in the original Freedom of Information Law, “the exception...is available only if there is both proof of such hardships and it is established that the records sought are not relevant or essential to the ordinary work of the agency or municipality.
The latter branch of this conjunctive requirement cannot be met in this instance” (emphasis added by court, 45 NY2d 954, 955 ). Similarly, in another case that involved §89(2)(b)(iv), the court cited the Gannett decision and found that the application of that provision required that the "test" of finding that disclosure would result in personal or economic hardship and that the information was not relevant to the work of the agency could not be met. Therefore, it was held that the records were required to be made available (Flatbush Development Corp. v. Insurance Department, Sup. Ct., New York County, NYLJ, October 7, 1983).
In this instance, for reasons described earlier, we do not believe that disclosure of utility usage would result in personal or economic hardship. Moreover, the records are clearly relevant to the work of the agency. Consequently, again, we believe that the records must be disclosed, including the names found within them.
In response to your request for tax records, we note the Village’s response that “[t]he 2000 tax records have been archived, and a search for that year would be burdensome, as such it has not been included.” While it may be necessary for the agency to spend additional time locating the requested material and then responding to the request, this is not one of the legal exceptions to rights of access to records. Accordingly, without more, it is our opinion that the records should be provided.
The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3)(a) of the Freedom of Information Law states in part that:
“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.… If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to th person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.”
Accordingly, this will confirm that an agency is required to respond in writing within five business days of receipt of a written request for records.
Further, when an agency denies access to records, Committee regulations, which have the full force and effect of law, require that the “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals…”.
Although the Village failed to inform you of the right to appeal, a denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
“...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”
Section 89(4)(b) states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Law and Rules.
Many more than ten business days have passed since the receipt of your appeal by Village. In consideration of the foregoing, should you “substantially prevail” in a judicial proceeding, it is clear that a court would have the discretionary authority to award reasonable attorney’s fees and other litigation costs reasonably incurred.
We hope this is helpful.
Camille S. Jobin-Davis