FOIL AO 19703 January 15, 2019
OML AO 5604
FROM: Robert J. Freeman, Executive Director
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 correspondence, which focuses on rights of access to “sign-in sheets” on which members of the public attending meetings, hearings and similar events conducted by Community Board 8 in the Bronx identify themselves.
Attached to your letter is a memorandum sent by Rosemary Ginty, Board Chair, to Tom Lucania, the Bronx Borough President’s Director of Community Boards. She wrote that I advised that the sign-in sheets are subject to FOIL and cannot be withheld, even though they may include personal email and/or residence addresses and telephone numbers. In this regard, to attempt to provide guidance consistent with law and cognizant of privacy concerns, I offer the following comments.
First, the Freedom of Information Law (FOIL) is based on a presumption of access. All government agency records are available to the public, except those records or portions of records that may justifiably be withheld based on one or more of the exceptions to rights of access appearing in §87(2) of that statute. Key in my view is §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” Additionally, §89(2)(b) contains a series of examples of unwarranted invasions of personal privacy. The standard in the law concerning privacy is subject to a variety of interpretations and may change with changes in the views and values of society.
Second, the Open Meetings Law, §103(a), states that “Every meeting of a public body”, such as a Community Board, “shall be open to the general public.” Based on that provision, any person may attend a meeting of the Community Board, irrespective of that person’s residence or citizenship. I note that public bodies have the inherent capacity to establish reasonable rules to govern their proceedings. If the Board permits those in attendance to speak during its meetings, I do not believe that it may distinguish among those who may seek to do so. For example, it would be unreasonable in my opinion to permit those who favor a certain policy to speak for three minutes but limit those who oppose the policy to speak for one minute or not at all.
In consideration of both FOIL and the Open Meetings Law, it has been advised that a public body may not require that a person seeking to attend a meeting or speak during the meeting to identify himself or herself. Situations have been brought to the attention of this office that demonstrate that it may be inappropriate or even dangerous for a speaker to identify himself or herself. Battered women and victims of violence may want to express their views, but, if, for example, they want to protect themselves from abusers or attackers, providing their names and especially their addresses could endanger their lives or safety. In a different context, parents of students may want to express their opinions before a board of education without identifying themselves, for doing so would identify their children, perhaps to their detriment. In short, I believe that there may be valid, justifiable reasons for speakers not identifying themselves or having their names and/or addresses or other identifying details included in minutes of meetings or sign-in sheets, for example.
Rather than requiring that attendees enter information about themselves in a sign-in sheet, it is suggested that a sign-in sheet specify in bold letters that entry of the information is optional, and that if it is entered, it may be disclosed in response to a request made pursuant to FOIL.
As indicated earlier, societal views change with time, and that is so with respect to the disclosure of email addresses. Years ago, in consideration of the transmission of viruses and the far lesser use of email, this office advised that personal email addresses could be withheld based on the exception involving unwarranted invasions of personal privacy. However, the use of email has become routine on the part of millions. Moreover, when an agency denies access to a record and the denial is challenged in court, the agency has the burden of proof. In Livson v. Town of Greenburgh [141 AD3d 658 (2016)], it was held that a list of email addresses of residents used to inform them of events occurring in the Town is public. In short, it could not be demonstrated that disclosure of an email address would rise to the level of an “unwarranted invasion” of privacy. Many individuals, purposefully or otherwise, share their email addresses as a matter of course.
We have advised that a personal telephone number may be withheld. When a call is received, there is an intrusion different from the receipt of email. The phone creates an interruption; email messages are often stored and deleted even before reading them.
Lastly, if a list of names and home addresses or an email list is developed and requested pursuant to FOIL, §89(2)(b)(iii) refers to the ability to withhold a list of names and addresses if the list would be used for solicitation or fund-raising purposes. If the purpose for which a request for a list of names and addresses or a list of email addresses is unknown, §89(3)(a) contains a provision that enables an agency to require that a person seeking such a list certify in writing that the list will not be used for solicitation or fund-raising, nor will it shared with another person or entity to be used for those purposes.
I hope that I have been of assistance. If you would like to discuss the matter, please do not hesitate to contact me.