FOIL AO 19684

From:                      Freeman, Robert J (DOS)
Sent:                        Thursday, August 16, 2018 1:02 PM
Subject:                   Municipal ID Program

Dear :

As you are aware, I have received your request for an advisory opinion.

You indicated that the Middletown Common Council “is considering the establishment of a municipal ID card system for City residents and pointed out that “the City would invite residents who do not have traditional identifications to submit various proof‐of‐identification documents to acquire a municipal ID card.” Those “proof‐of‐identification” documents would be given a “point rank” – those residents who accumulated enough points would be given an identity card.” However, “[t]he plan is that the City would not keep any of the documents pro‐offered for the card” and “would only keep the one‐page application and a copy of the issued card.”

The issue, according to City officials “involves the possibility that information on the cards and the applications would be subject to FOIL.”  In your view, “information such as addresses and telephone numbers would be exempt from FOIL”, but you “do not see how the names themselves would be exempt from a FOIL request.”

You have requested an advisory opinion on the matter, and in this regard, I offer the following comments.

First, FOIL pertains to all government agency records, and §86(4) of that statute defines the term “record” expansively to mean “…any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever.” Based on the definition, any documents prepared or submitted to the City, or any writings that exist in some physical form, would constitute City records that fall within the coverage of FOIL.

Second, FOIL does not deal with the retention of records. Rather, direction concerning the retention and disposal of records is found in Article 57‐A of the Arts and Cultural Affairs Law, also known as the “Local Government Records Law.” In brief, schedules indicating minimum retention periods for various kinds of records are developed by the State Archives, and an agency cannot destroy or dispose of records until the minimum period of retention has been reached. I am unfamiliar with the details of records retention requirements, and it is suggested that the City’s records management officer or the State Archives be consulted to ascertain the minimum retention time for the kinds of records at issue.

Third, FOIL is based on a presumption of access; all government records are available, except those records or portions of records that fall within the grounds for denial of access appearing in §87(2). It is likely in my view that, with the exception of names of those seeking or obtaining ID cards, the information in question may be withheld pursuant to §87(2)(b), which permits a denial of access when disclosure would constitute “an unwarranted invasion of personal privacy.” As you know, when a denial of access to records pursuant to FOIL is challenged in court, the agency has the burden of proof. From my perspective, it would be difficult to demonstrate that disclosure of the names alone, without additional details, would result in an unwarranted invasion of privacy.

Lastly and perhaps most importantly, FOIL is one among several vehicles that may be used to obtain records. FOIL confers rights of access to government records, with certain exceptions, upon the public. Further, when records are accessible under FOIL, it has been held that they are equally available to any person, without regard to one’s status or interest [Burke v. Yudelson, 51 AD2d 673 (1976)]. Other disclosure devices, such as discovery or the use of subpoenas, relate one’s status as a litigant or perhaps governmental authority to obtain records that ordinarily could be withheld based on an exception appearing in FOIL.

I am merely suggesting that records or portions of records that might properly be withheld under FOIL may be available in contexts unrelated to the use of FOIL. FOIL, therefore, would offer some protection in the ID program, but the authority to deny access under FOIL is not transferable when records are sought based on different provisions of law that may require disclosure.

I hope that I have been of assistance.