FOIL AO 19647

From:                      Robert J. Freeman, Executive Director
Sent:                       February 21, 2018
Cc:                           Deborah W. Christian


Dear :

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, except as otherwise indicated.

I have received your lengthy and thoughtful correspondence, as well as related materials, concerning your request made pursuant to the Freedom of Information Law (FOIL) for records of the New York State Department of Environmental Conservation (DEC).

As a former DEC employee, you wrote of your familiarity with the powers and duties of that agency and focused specifically on “two significant matters relating to Saranac Lake and lands surrounding or close to Saranac Lake.”  Those projects, in your view, highlight the need for compliance with applicable laws, rules, regulations and conditions, and you expressed the contention that “Adequate enforcement deters not only those who have violated the law from doing so again but deters the public that has knowledge of adequate enforcement from violating the law in the first place.”  A deterrent in your opinion “is clearly preferable to prevent violations as opposed to taking action after an offense has occurred.”

You suggested that a “significant portion of the public affected in the area encompassed by these projects feel that present enforcement is not satisfactory”, even though the public does not possess “concrete data upon which to base its position.”  Although some aspects of your request were granted, the critical elements of the request, “the names and addresses of those who had been issued tickets,” were denied both in response to your initial request and, thereafter, your appeal.

The primary reason for denial of access by DEC relates to §87(2)(b) and 89(2)(b) of FOIL, both of which pertain to unwarranted invasions of personal privacy.  The latter includes examples of unwarranted invasions of personal privacy, one of which was referenced in DEC’s determination of your appeal.  Section 89(2)(b)(iv) pertains to “disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party land such information is not relevant to the work of the agency requesting or maintaining it.” It is your view that disclosure of identifying details concerning those found to have engaged in violations “is the only way to determine if there are repeat offenders and the demographics of the offenders” and, therefore, that names of the offenders are clearly relevant to the work of the agency.”

In my view, there are two reasons to be cited that favor a conclusion that the names and addresses of those found to have engaged in violations must be disclosed. 

First, although the courts are not subject to FOIL, court records are generally available to the public based on statutes that deal only with the courts.  In this instance, records indicating violations would be available pursuant to §2019-a of the Uniform Justice Court Act, which applies to town and village justice courts. In a related vein, I point out that in a decision rendered by the Court of Appeals, it was determined that records that might have originated in or have been prepared by a court, copies of which are maintained by an “agency” as that term is defined in FOIL, §86(3), constitute agency records that fall within the requirements of FOIL [see Newsday v. NYS Empire State Development Corp., 98 NY2d 359 (2002)]. Further, when records have been cited or submitted in evidence in a public judicial proceeding and would be available from a court, it has been held that they are equally available from an agency that possesses the records [Moore v. Santucci, 151 AD2d 677 (1989)].

Second, and in my opinion, most importantly, the Court of Appeals, the State's highest court, determined in 1984 that traffic tickets issued and lists of violations of the Vehicle and Traffic Law compiled by the State Police during a certain period in a county must be disclosed, unless charges were dismissed and the records sealed pursuant to provisions of the Criminal Procedure Law (see Johnson Newspaper Corp. v. Stainkamp, 61 NY2d 958).

Although that decision did not pertain to the kinds of violations to which you referred, I believe that the principle would be applicable in this instance. In short, unless they have been sealed pursuant to statute, the records in question, including the names and addresses, would in my opinion be accessible from either the court or other village offices that maintains the records, and from DEC as well.

Lastly, as you pointed out in your letter sent to this office, FOIL was recently amended to require a court to award attorney’s fees to a person who has substantially prevailed when challenging an agency’s denial of access to records and the court finds that the agency had no reasonable basis for its denial.  In my opinion, in consideration of the nature of the records at, the obligation of a justice court to disclose equivalent or duplicate records, and the holding of the Court of Appeals in Johnson Newspapers, there appears to be no reasonable basis for the DEC’s denial of access to the names and addresses of those found to have engaged in violations in the context of your request.

In an effort to resolve the matter without resort to litigation, a copy of this opinion will be sent to DEC’s FOIL Appeals Officer.

I hope that I have been of assistance.