July 1, 2014
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.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Education Department. Specifically, you requested a list of the names and addresses of all licensed architects in the State of New York. In its response, the Department clarified that in those instances in which the Department collected business addresses, it would provide the full address, but where it captured only the architect’s home address, it would provide only the city and state. The Department indicated that it does not maintain email addresses, telephone numbers, or specialties, apparently due to the age of its database. You agreed to receipt of the redacted list and requested our opinion on the matter.
In this regard, we note a recent decision from the Court of Appeals, the highest Court in New York, in which it affirmed the decision of the Appellate Division, Third Department in part, and determined that an agency could not deny access to an entire record when disclosure of portions of the record could be withheld with reasonable effort (Schenectady County Society for the Prevention of Cruelty to Animals v Mills, 18 NY3d 42, 935 NYS2d 279 ). The case involved a list of approximately 70 names and addresses of veterinarians and technicians licensed by the Education Department in a particular county. The Department denied access to the entire list on the ground that disclosure of some of the addresses would constitute an unwarranted invasion of personal privacy. The Court ordered the agency to spend the few hours necessary to determine which addresses were residences, and to release the list with appropriate redactions.
The above case was based on the applicant’s decision to request only names and business addresses; the court’s analysis was premised on the underlying agreement of the parties that there would be no disclosure of home addresses of licensees. The case is similar to the circumstances here in that the parties agreed to limited disclosure. We note that your request was made to the Public Information Officer and did not mention the Freedom of Information Law. The PIO did not provide any legal basis for refusing to disclose home addresses, indicating only that she would provide limited access, to which you agreed. Had you made the request “pursuant to FOIL,” the agency would have been required to set forth the basis in law for the denial of access. In our opinion, the agency should have complied with law even though your request did not cite FOIL.
The basis for our opinion rendered in years past, including FOIL-AO-16051 (copy enclosed), on which the Third Department relied in part, advises that the exception concerning privacy does not apply to a record identifying entities or individuals in relation to their business or professional capacities. That being so, we do not believe that there is a basis in law for withholding names and addresses related to professional licensees, unless an agency maintains two addresses, one of which is clearly a residence, and the other relating to one’s business or professional activities. When only one address is collected, we believe that it is appropriate to assume that it is where the licensed activity is carried out.
There are many agencies that conform to this advice. For example, when an attorney registers to practice law with the Office of Court Administration, the attorney is issued a receipt on which it indicates that if no business address is provided, the home address is public. Through an online database, the public may access information about attorneys licensed in New York, including the address provided by the attorney upon registration.
Further, although we have no knowledge of how the Department maintains this particular database, we learned through proceedings related to the above cited case that with respect to veterinarian licenses, the Department had no computerized or automated mechanism to distinguish between home and business addresses. Accordingly, should there be a challenge to a denial of access to such addresses pursuant to the Freedom of Information Law, we note that the Department would bear the burden of proving which addresses are home addresses.
In sum, it is our opinion that if the agency maintains two addresses per license, and has the ability to distinguish between home and business, the agency would have grounds to withhold home addresses. On the other hand, if the agency maintains only one address per licensee, we believe that it would have no basis to withhold, and therefore must disclose all of the addresses.
Camille S. Jobin-Davis