June 11, 2007
Auburn, NY 13021
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.
I have received your letter and the materials attached to it, and I hope that you will accept my apologies for the delay in response. You have sought an advisory opinion concerning the propriety of a restriction imposed by Cayuga County on a form used to request records pursuant to the Freedom of Information Law. Speci fically, when a request is made "for a list of names and addresses", the form requires the applicant sign the following statement:
"I hereby certify that I will not use the above information for commercial or fund-raising purposes. I further certify that I will not sell, give or otherwise transmit the information to any person, organization or entity."
In this regard, the Freedom of lnformation 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 section 87(2)(a) through (j) of the Law.
As a general matter, when records are accessible under the Freedom of lnformation Law, it has been held that they shou ld 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 NY 2d 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 involves a provision pertaining to the protection of personal privacy. By way of background, §87(2)(b) of the Freedom of lnformation 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)].
As indicated earlier, 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. Due to the language of §89(2)(b)(iii), however, 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 intend s 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.).
In my opinion, the first sentence of the restriction, that the recipient must certify that he/she would not use a list of names and addresses for commercial or fund-raising purposes, is consistent with law and fully appropriate. However, I believe that the second sentence seeking a certification that the recipient "will not sell, give or otherwise transmit" a list of names and addresses is overbroad. If a list of names and addresses would not be used for a commercial or fund-raising purpose, the recipient may do with the list as he/she sees fit. There are numerous instances in which lists of names and addresses are given, shared and used by persons other than the initial recipient of the lists, i.e., to express positions relating to an election, to build support for or against a community project or development, to attempt to educate concerning particular matters, etc. In short, in those situations in which a list of names and addresses would not be used or distributed for commercial or fund-raising purposes, I do not believe that there can be valid restrictions on its use or dissemination.
I hope that I have been of assistance.
Robert J. Freeman
cc:Frederick Westphal, County Attorney