FOIL AO 19746 July 16, 2019
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 am writing in response to your request for an advisory opinion regarding the manner in which the Western Regional Off-Track Betting Corporation (WROTB) responded to your Freedom of Information Law (FOIL) request for records that reflect the names of winners or recipients of the WROTB “Suitestakes” Suite Ticket Promotion Program and what the recipient won.
In response to your FOIL appeal, WROTB upheld the denial of access. Part of the agency’s argument for withholding the requested records is based on the assertion that it is a “quasi-private corporation.” As we have advised in previously prepared opinions, regional off-track betting corporations are “agencies” as that term is defined by FOIL.
By way of background, FOIL applies to agency records and §86(3) of FOIL defines the term "agency" to mean:
“...any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.” (emphasis is mine)
Section 66(1) of the General Construction Law defines “public corporation” to include:
“a municipal corporation, a district corporation, or a public benefit corporation.” (emphasis is mine)
Section 66(4) of the General Construction Law defines “public benefit corporation” to mean:
“corporation organized to construct or operate a public improvement wholly or partly within the state, the profits from which inure to the benefit of this or other states, or to the people thereof.”
Section 502(1) of the New York State Racing, Pari-Mutuel Wagering and Breeding Law states:
“A regional off-track betting corporation is hereby established for each region… Each regional corporation shall be a body corporate and politic constituting a public benefit corporation.” (emphasis mine)
As such, it is clear that WROTB is an agency that is required to comply with FOIL. Any argument by the agency that its records are not subject to the same rights of access as the records of any other agency, as that term is defined by FOIL, is, in my opinion, inconsistent with law.
In response to your request for records that reflect the names of winners or recipients of the WROTB “Suitestakes” Suite Ticket Promotion Program and what the recipient won, the agency asserted that disclosure of the requested information would constitute an unwarranted invasion of personal privacy. Specifically, the agency asserts that “89(2)(b)(iv) [of FOIL] would certainly apply to publishing the names of regular customers of WROTB to our direct competitors and its clear result being economic or personal hardship to the subject party.” In my opinion, WROTB has misinterpreted this section of the law. The law reads:
“An unwarranted invasion of personal privacy includes, but shall not be limited to… (iv) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it.” (§89(2)(b)(iv) of FOIL)
Based on the phrasing of the appeal determination, it appears that the agency is misinterpreting the words “subject party” in the paragraph above. The words “subject party” reference the natural person or persons about whom the records relate. The words do not reference the agency (i.e., WROTB). WROTB appears to be arguing that disclosure of the names of its customers to its competitors would cause “economic or personal hardship” to WROTB. In our view, and the view of the courts, WROTB is not a natural person which has an expectation of “personal privacy.” Based upon judicial interpretations, §87(2)(b) is intended to pertain to natural persons, not entities or persons acting in business capacities. In a decision rendered by the State's highest court, the Court of Appeals, that focuses upon the privacy provisions, the court referred to the authority to withhold "certain personal information about private citizens." [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York City Police Department, 73 NY 2d 92 (1989)]. In another decision, the opinion of this office was cited and confirmed, and the court held that "the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence" [American Society for the Prevention of Cruelty to Animals v. New York State Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989).
If the agency meant to assert that disclosure of the winners’ names and winnings to WROTB’s competitors would result in “economic or personal hardship” to the winners, it is difficult to see how that could be the case. The disclosure of names to competitors could, in fact, provide additional winning opportunities for those individuals.
Further, it is my view that the names of winners and their prizes are relevant to the work of the agency. In terms of the general intent of FOIL, providing a means of ensuring government accountability, disclosure of the names of winners represents a viable method of informing the public that there are real winners who met the contest eligibility rules. Absent that kind of disclosure, the public might have no way of knowing whether WROTB is carrying out its duties appropriately. For that reason, I believe that disclosure of winners' names is relevant to the work of the agency.
The agency’s position on disclosure also appears to be inconsistent with its own promotion rules and publicity policies. While the agency asserts in its appeal determination that one of its goals is “to protect the identity of individuals who utilize our facilities for their own personal enjoyment,” I note that WROTB publishes the names and winnings of some of its winners on its website www.bataviadownsgaming.com. While I was unable to locate the official rules for the “Suitestakes” Suite Ticket Promotion on the agency’s website, I was able to locate official rules for several other promotions. Each set of rules contain the following (or very similar) language:
“The winner’s entry and acceptance of any prize constitutes permission for the Sponsor to use said winner’s name, photograph, likeness, statements, biographical information, voice and address (city and state), in all forms of media, in perpetuity, without notice or further compensation.”
As such, promotion winners have, perhaps tacitly, consented to disclosure of information about them.
In my view, based on the factors considered above, it is unlikely that the agency could meet its burden of proof in justifying non-disclosure of the requested records.
I hope this information proves useful.