February 6, 1997





Ms. Deborah Schleede Atlantic Granite and Marble 450 Lee Road Rochester, NY 14606

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 Ms. Schleede:

I have received your letter of January 14 in which you requested an advisory opinion concerning rights of access to certain records.

You wrote that you are interested in obtaining "commercial building permit files or copies of the permit applications that may go to the town assessor", as well as "commercial building project addresses, type of jobs, the names, addresses and phone numbers of the contractors doing the work."

In this regard, I offer the following comments.

First, it is noted at the outset that the Freedom of Information Law pertains to existing records. Section 89(3) of that statute states in part that an agency is not required to create or prepare a record in response to a request. Therefore, insofar as the information sought is not maintained in the form of a record or records, the Freedom of Information Law would not apply.

Second, however, insofar as the information sought is maintained in an agency's records and can be found based on an agency's filing or record-keeping systems, I believe that it would be available.

As the Freedom of Information Law pertains to existing records, it 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. In my view, although one of the grounds for denial is pertinent to an analysis of rights of access, it could not be appropriately asserted in the context of your inquiry.

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, I do not believe that the provisions in the Freedom of Information Law pertaining to the protection of personal privacy could be asserted to withhold the records in question or that disclosure of the information would result in an unwarranted invasion of personal privacy. Further, none of the remaining grounds for denial could appropriately be applicable.

As you requested, copies of this opinion will be forwarded to the officials identified in your letter. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: James Breeze
Carol Pennington
Robert Hank
Dennis Essom