January 20, 1998

Mr. Danny Andersen
9 Stratford Ave.
Coram, NY 11727

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. Andersen:

I have received your letter of December 11 in which you questioned
a practice of Suffolk County in relation to requests for records. Specifically,
you wrote that the County is requiring you to sign affidavits in which you
express an "assurance" that you have not sought the records "for ‘commercial
or fund-raising' purposes or for purposes prohibited by the Freedom of
Information Law."

From my perspective, there are no prohibitions in the Freedom of
Information Law concerning the use of records that are available under that
statute. As a general matter, the reasons for which a request is made and an
applicant's potential use of records are irrelevant, and it has been held that if
records are accessible, they should be made equally available to any person,
without regard to status or interest [see e.g., M. Farbman & Sons v. New
York City, 62 NYS 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779,
aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Therefore, if the records are
available by law, your intended use of the records would have no effect on
your rights of access.

I note that §89(2)(b)(iii) of the Freedom of Information Law permits
an agency to withhold "lists of names and addresses if such list would be used
for commercial or fund-raising purposes" on the ground that disclosure would
constitute an unwarranted invasion of personal privacy. Due to the language
of that provision, the intended use of a list of names and addresses or its
equivalent may be relevant, and case law indicates that an agency can ask that
an applicant certify that the list would not be used for commercial purposes
as a condition precedent to disclosure [see Golbert v. Suffolk County
Department of Consumer Affairs, Sup. Ct., Suffolk Cty., (September 5,
1980); also, Siegel Fenchel and Peddy v. Central Pine Barrens Joint Planning
and Policy Commission, Sup. Cty., Suffolk Cty., NYLJ, October 16, 1996].

However, §89(6) of the Freedom of Information Law states that:

"Nothing in this article shall be construed to
limit or abridge any otherwise available right
of access at law or in equity to any party to

Therefore, if records are available as of right under a different provision of
law or by means of judicial determination, nothing in the Freedom of
Information Law can serve to diminish rights of access. In Szikszay v.
Buelow [436 NYS 2d 558, 583 (1981)], it was determined that an assessment
roll maintained on computer tape must be disclosed, even though the applicant
requested the tape for a commercial purpose, because that record is
independently available under a different provision of law, Real Property Tax
Law, §516. Since the assessment roll must be disclosed pursuant to the Real
Property Tax Law, the restriction concerning lists of names and addresses in
the Freedom of Information Law was found to be inapplicable.

In the context of a request for a list of names and addresses sought for
a commercial purpose, if the Freedom of Information Law solely governs
rights of access, an agency could in my view seek the kind of certification
referenced earlier. If a different statute requires disclosure independent of the
Freedom of Information Law, I believe that an agency would be required to
disclose, notwithstanding the intended use of the data. Further, it is
emphasized that the provision imposing a condition on disclosure pertains
only to lists of names and addresses of natural persons; no conditions may be
imposed, in my opinion, with respect to requests for records other than such
lists of names and addresses, irrespective of the intended use of the records.

Having recently received correspondence regarding your efforts from
Senator Kenneth P. LaValle, enclosed is a copy of a "Primer on Electronic
Information, Fees and Responses to Requests."

In an effort to clarify understanding of and compliance with the
Freedom of Information Law, a copy of this response and the Primer will be
forwarded to the office of the County Attorney.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: Derrick Robinson