December 8, 2008

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.


            As you are aware, I have received your correspondence, and I hope that you will accept my apologies for the delay in response.  In your capacity as Dutchess County Commissioner of the Office of Computer Information Systems, you have sought guidance concerning information collected by the County from its residents.

            You wrote that:

“This data would be garnered from two website computer applications: the first is eSubscriber, whereby the public can sign-up to receive an email when subjects of interest change on our website.  The second one is a planned system that will allow the public to submit service requests, ask questions and raise concerns through our website (the correspondence to/from the County would be stored in a database).”

            You have asked whether the following items must be disclosed, or conversely, may be withheld under the Freedom of Information Law:

“1.  Name
2.  Home Address
3.  Phone Number
4.  Email Address
5.  Content of correspondence to/from the County regarding the public’s service requests, questions and comments on issues?
6.  Regarding the content of the correspondence - Can we tag specific records as ‘private/confidential’ (e.g. HIPAA related) and not release these?”

            In this regard, 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 (j) of the Law.  From my perspective, the issue involves whether or the extent to which disclosure would constitute “an unwarranted invasion of personal privacy” pursuant to §§87(2)(b) or 89(2)(b), the latter of which includes a series of examples of unwarranted invasions of personal privacy.

            Since you referred to an advisory opinion rendered earlier this year concerning an analogous issue and information, it appears that you are familiar with the opinion of this office.  Nevertheless, I offer the following observations.

            First, 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 involves a provision pertaining to the protection of personal privacy.  One of the examples of an unwarranted invasion of personal privacy pertains to:

"sale or release of lists of names and addresses if such lists would be used for solicitation 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 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.  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.  The requirement described in Golbert is now part of the Freedom of Information Law [see §89(3)(a)].  Accordingly, I believe that the County may condition disclosure of a list of names and home addresses, or equivalent records, upon an assertion by an applicant for such records that the records will not be used for solicitation or fund-raising purposes.

            Although there is specific statutory guidance concerning lists of names and addresses sought for solicitation or fund-raising purposes, as suggested in the earlier opinion, names and residence addresses are widely available, irrespective of the purpose for which they are requested in the form of voter registration lists available under §5-602 of the Election Law and assessment records available under both §516 of the Real Property Tax Law and new provisions added to the Freedom of Information Law [see §89(2)(c)(iv)] concerning disclosure.  Therefore, in my opinion, release of the names and/or addresses of recipients of the County’s newsletter would not constitute an unwarranted invasion of personal privacy, again, unless they would be used for solicitation or fund-raising purposes.

            On the other hand, I believe that home telephone numbers or cell phone numbers may be withheld, for the Appellate Division recently reached that conclusion [see Humane Society v. Brennan, 53 AD3d 909 (2008)].  That is so, in my view, because of the possibility of unwanted interruptions.  Unlike unwanted mail which can easily be recycled or ignored, a telephone call, by nature, interrupts.  Accordingly, in my opinion, home and cell phone numbers may be withheld. 

            Email communications involve a lesser invasion of privacy than a phone call or contact at a person’s home address, because an email address does not divulge the geographic location of a person’s home, and in many instances does not include a person’s name or other identifying information.  Further, individuals may maintain multiple email accounts, reserving one for internet business and another for social communications.  Consequently, I believe that disclosure of an email address would be less likely to cause an unwarranted invasion of personal privacy than disclosure of a home or cell phone number and must be disclosed.

            With respect to the second kind of communication to which you referred, “service requests, questions and comments on issues” submitted by the public, I believe that the obligation to disclose, or the ability to withhold, is dependent on the content of the communication.  For instance, if the communications relate to public assistance, personal medical or mental health matters, based on the examples of unwarranted invasions of personal privacy appearing in §89(2)(b), any portion of those communications which if disclosed would identify the correspondent may be withheld.  Similarly, if the correspondence involves a particular characteristic, such as questions concerning either senior citizens’ or youth activities, both of which are age related, again, disclosure of identifying details would in my view constitute an unwarranted invasion of personal privacy.  In those instances, following the redaction of personally identifiable details, the remainder of those communications would be accessible.  However, if correspondence is of a more general nature, i.e., a request for the schedule of meetings of the County Legislature or a county map, there is little that could be characterized as intimate or highly personal, and in those instances, I believe that the records would be available, for it could not be demonstrated that disclosure would result in an unwarranted invasion of personal privacy.

            I hope that I have been of assistance.  Should any further questions arise, please feel free to contact me.



                                                                                                Robert J. Freeman
                                                                                                Executive Director