Schenectady County Society for the Prevention of Cruelty to Animals, Inc. v. Mills

McCarthy, J.

Appeal from a judgment of the Supreme Court (Devine, J.), entered October 8, 2008 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent partially denying petitioners’ Freedom of Information Law request.

Pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]), petitioners requested from respondent the names and street addresses of all licensed veterinarians and veterinary technicians located in Schenectady County.1 ***Respondent provided petitioners with a list of those individuals, along with the city and state portion of their addresses, but refused to disclose the licensees5 street addresses, stating that the release of such information would constitute an unwarranted invasion of personal privacy (see Public Officers Law § 87 [2] [b]). After an unsuccessful administrative appeal, petitioners commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner Schenectady County Society for the Prevention of Cruelty to Animals, Inc. (hereinafter petitioner) appeals.

FOIL “impostes] a broad standard of open disclosure in order to achieve maximum public access to government documents” (Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 416 [1995]). Courts must construe FOIL liberally, such that government records are presumptively available for public inspection unless a statutory exemption applies (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 580 [1980]; Matter of New York State United Teachers v Brighter Choice Charter School, 64 AD3d 1130, 1131 [2009], Iv granted 13 NY3d 712 [2009]; see also 21 NYCRR 1401.1 [d]). “Exemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access” (Matter of Carnevale v City of Albany, 68 AD3d 1290, 1292 [2009] [citations omitted]; see Public Officers Law § 89 [4] [b]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). Because respondent failed to meet that burden, petitioner was entitled to receive the records it requested.

Respondent asserts that the street addresses of licensees were exempt because their “disclos[ure] would constitute an unwarranted invasion of personal privacy” (Public Officers Láw § 87 [2] [b]). The Legislature clarified the personal privacy exemption by providing certain categories of information that would fall within its terms (see Public Officers Law § 89 [2] [b]). Although that list is nonexclusive, respondent did not meet his burden of establishing that any of those categories applies here, or that the disclosure of street addresses will necessarily constitute an “unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]; § 89 [2] [b]). While this Court has noted that “[disclosing a person’s home address implicates a heightened privacy concern” (Matter of New York State United Teachers v Brighter Choice Charter School, 64 AD3d at 1132), we have also ordered disclosure of home addresses where the agency failed to provide proof that such disclosure fell within the personal privacy exemption (see Matter of Carnevale v City of Albany, 68 AD3d at 1292; see also Cornell Univ. v City of N.Y. Police Dept., 153 AD2d 515, 517 [1989], lv denied 75 NY2d 707 [1990]; Matter of New York Teachers Pension Assn. v Teachers’ Retirement Sys. of City of N.Y., 71 AD2d 250, 257 [1979]).

Here, respondent asserted that the agency’s database contains one address per licensee and the agency is unable to distinguish whether the licensee has supplied a business or home address.2 A business address would not implicate personal privacy and would be available under FOIL (see American Broadcasting Cos. v Siebert, 110 Misc 2d 744, 751 [1981]; Comm on Open Govt FOIL-AO Letter from Bob Freeman to Jim Baldwin, May 16, 1994). In a situation nearly identical to this case, the Committee on Open Government opined that if an agency was unsure whether the addresses it maintained were home or business addresses, the agency could not “justify a denial of access based on its contention that some, but not all of the addresses, are home addresses” (Comm on Open Govt FOIL-AO-16051 [2006] [responding to inquiry concerning FOIL request seeking names and addresses of physical therapists licensed by Department of Education]). Though that opinion is not binding, the Committee’s reasoning leads us to agree with its conclusion (see Matter of John P. v Whalen, 54 NY2d 89, 96 [1981]; Matter of Csorny v Shoreham-Wading Riv. Cent. School Dist., 305 AD2d 83, 90 [2003]).3

The dissent engages in a weighing of the public interest in the information versus the privacy interests involved. While such an analysis is appropriate when considering whether the personal privacy exemption applies absent the applicability of a specific statutory category (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]; Matter of Edwards v New York State Police, 44 AD3d 1216, 1216 [2007]), the dissent distorts the analysis here by framing the question so as to consider how the disclosure of home addresses affects these interests.4 The underlying problem is that the record fails to establish that home addresses, as opposed to business addresses, will be disclosed. Proof that one, or some, or all of the licensees at issue in this case provided home addresses could affect the balance. Without such proof, however, we cannot prevent disclosure of all addresses based on speculation that we may be risking the inadvertent disclosure of private information.5

Finally, the dissent suggests that we should direct that notice of this proceeding be provided to the affected licensees, which would allow them an opportunity to intervene. Initially, the statutory provisions of FOIL do not address the rights of individuals whose information may be included in government documents that are subject to disclosure (see Cornell Univ. v City of N.Y. Police Dept., 153 AD2d at 516). While courts have discretion to order notice of a proceeding to any person (see CPLR 7802 [d]), this relief was not requested by respondent. In a memorandum of law, respondent asked Supreme Court for an opportunity, should the court order disclosure, to notify licensees and permit them to provide alternative addresses if they so choose. Respondent also submitted the affidavit of the director of the Division of Professional Licensing Services, who stated that the present records did not distinguish between home and business addresses, therefore figuring out which type of address was listed would require respondent to solicit additional information from licensees, which FOIL does not require {see Public Officers Law § 89 [3]). According to the affidavit, this would necessitate the creation of a new record, which FOIL also does not require {see Public Officers Law § 89 [3]). Considering the affidavit along with the request in his memorandum of law, respondent wants to have it both ways. He basically argued that he could not be required to contact licensees for additional information and could not be required to create a new record, then asked for an opportunity to do what FOIL does not require only if the court found against him. Although courts have discretion to provide notice of a proceeding to any person, if respondent was so concerned about the licensees’ privacy, he could have contacted them and determined whether they had provided home addresses prior to the court issuing an order, allowing him to resolve the case by redacting home addresses and turning over the information without any court involvement. Instead, his request to the court would actually contravene the purposes of FOIL by creating a new record of addresses in response to a FOIL request to avoid disclosing the original records. This we cannot condone.

Respondent acknowledges a lack of awareness regarding which licensees provided home addresses and which provided business addresses. The record contains only speculation that any of the requested addresses are home addresses. Respondent therefore has not met his burden of establishing that the personal privacy exemption applies. With the agency having failed to establish an exemption, FOIL’S broad standard of open disclosure and presumption of availability require that the street addresses be disclosed. Accordingly, Supreme Court’s judgment is reversed and the petition is granted in its entirety.

Mercure, J.E, and Lahtinen, J., concur.

1 The dissent notes that respondent is responsible for maintaining licensing information for nearly 800,000' individuals engaged in 47 different professions across the state. While that may be interesting trivia, this proceeding only deals with individuals engaged in two professions in one county.

2 On this point, respondent submitted the affidavit of the director of the Division of Professional Licensing Services. The Division regulates 47 professions, and the affidavit is clearly based upon the director’s experience in general—as noted by his examples relating to speech-language pathologists, occupational therapists and licensees who work in prisons—rather than to the specific records relating to veterinarians or veterinary technicians. While the director affirms that, “[biased upon [his] own knowledge, many registered addresses are in fact residential addresses,” he does not provide the basis for this knowledge and his explanation reveals that his conclusion is an assumption rather than a fact-based statement. Contrary to the dissent’s suggestion, we will not rely on inferences or speculation to establish respondent’s burden.

3 As the dissent points out, respondent was aware of this advisory opinion and specifically chose not to follow it without explaining why he disagreed with the opinion. Additionally, being on notice of that 2006 opinion, respondent apparently did nothing to revise the agency’s method of collecting addresses from licensees either by asking for separate business and home address information or informing licensees that any address they provided could be subject to disclosure. Respondent now desires to have this Court protect the privacy of licensees in light of his failure to take any action to improve his record-keeping procedures.

4 The dissent also stresses the requesters’ purpose for seeking the information, which is generally irrelevant when determining if the documents are available under FOIL (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566-567).

5 While the dissent feels that there is a question of fact regarding whether respondent maintains licensees’ business or residential addresses, that question is based on a speculative affidavit and inferences drawn from that affidavit. If, however, such a question exists, it was created by respondent’s inexact record-keeping. We cannot allow him to meet his burden of proving an exemption under FOIL by relying on his own inadequate practices.