February 6, 1997



Mr. Marc D. Zarowin
47 Plaza Street West
Apartment 10B
Brooklyn, NY 11217

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.

Dear Mr. Zarowin:

I have received your letter of January 13 and the correspondence attached to it.

You have sought an advisory opinion concerning a partial denial of access to a record by the Department of Transportation. By way of background, you indicated that you initiated a claim against "Well Done Moving", an "incompetent moving company which has already lost its DOT license." The item in which you are particularly interested that has been withheld involves "the name and number of Well Done Moving's bank account", for you wrote that without that information, you "may be unable to collect a significant and deserved judgment and the State will become complicit in [your] injury." The information in question was withheld pursuant to §87(2)(b) and (i) of the Freedom of Information Law.

In this regard, I offer the following comments.

First, the intended use of the information sought is irrelevant to rights of access conferred by the Freedom of Information Law. It has been held when records are accessible under that statute, they must be made equally available to any person, notwithstanding one's status or interest [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976); M. Farbman & Sons v. NYC Health and Hosps. Corp., 62 NY 2d 75 (1984)]. Conversely, when a record may properly be withheld under the Freedom of Information Law, your need for a record in litigation would not enhance your right to obtain it under that statute.

Second, 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 (i) of the Law.

Section 87(2)(b) provides that an agency may withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Further, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy, one of which involves "sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes." Therefore, in many instances, lists of names and addresses, or records containing equivalent information, may be withheld when they are requested for a commercial purpose. Nevertheless, in my opinion, the privacy provisions do not apply when records identify commercial entities or persons acting in business capacities. From my perspective and 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). More recently, in a case concerning records pertaining to the performance of individual cardiac surgeons, the court granted access and cited an opinion prepared by this office in which it was advised that the information should be disclosed since it concerned professional activity licensed by the state (Newsday Inc. v. New York State Department of Health, Supreme Court, Albany County, October 15, 1991).

In short, assuming that the items in question relate to a business entity, it does not appear that §87(2)(b) would serve as a valid basis for denial.

The other provision cited in the denial of your request, §87(2)(i), authorizes an agency to withhold "computer access codes". Based on its legislative history, that provision is intended to permit agencies to withhold access codes which if disclosed would provide the recipient of a code with the ability to gain unauthorized access to information. Insofar as disclosure would enable a person with an access code to gain access to information without the authority to do so, or to shift, add, delete or alter information, i.e., to make "electronic transfers", I believe that the bank account number could justifiably be withheld. On the other hand, insofar as disclosure would not permit an individual to gain unauthorized access information or the ability to alter the information, §87(2)(i) would not likely be applicable.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Lisa Reid, Assistant Commissioner for Governmental Relations
John B. Dearstyne