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

Malone Jr., J. (dissenting).

The Department of Education is responsible for maintaining a database containing licensing information for nearly 800,000 registered individuals working in 47 professions in New York, including certified public accountants, dentists, doctors, nurses, psychologists, social workers and veterinarians. These individuals are required to provide *1422the Department with one current mailing address at which they can receive information regarding their licensure and the failure to do so can result in a finding of professional misconduct {see Education Law § 6509 [8]; 8 NYCRR 29.1 [b] [13]). Because the Department requires only one address and does not require a specific type of address to be provided by the licensees, its database is not equipped to differentiate between residential and business addresses.1

Petitioners here requested from respondent information regarding all of the licensed veterinarians and veterinary technicians located in Schenectady County. Notably, petitioners expressly limited their request to the names and business addresses of those individuals. In that respect, we agree with the majority’s conclusion that the disclosure of such business information would not implicate the licensees’ personal privacy {see Public Officers Law § 87 [2] [b]; § 89 [2] [b]). However, it is not disputed that a question of fact exists as to whether the addresses that are maintained by respondent are the licensees’ business or residential addresses. According to respondent, at least some of the addresses are residential in nature. Because we would consider the disclosure of the licensees’ residential addresses to be an unwarranted invasion of privacy, we cannot agree with the majority’s conclusion that respondent is required to disclose every street address regardless of whether it is residential or business—a disclosure that would be more broad than that sought by petitioners’ limited request.

Although the disclosure here does not squarely fit within any of the six statutorily enumerated privacy exceptions {see Public Officers Law § 89 [2] [b]), that list is not exhaustive. When, as in this case, none of the exceptions is applicable, “we must decide whether any invasion of privacy here is ‘unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information” (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]). This Court has stated that the disclosure of an individual’s “home address implicates a heightened privacy concern” (Matter of New York State United Teachers v Brighter Choice Charter School, 64 AD3d 1130, 1132 [2009], lv granted 13 NY3d 712 [2009]; see Matter of Goyer v New York State Dept. of Envtl. Conservation, 12 Misc 3d 261, 270-271 [2005]). It is reasonable *1423to infer that these licensees—as well as the nearly 800,000 other licensees for whom respondent collects such information—may be relying on the government to be discreet in performing its custodial duties and to protect their personal information, which is not clearly relevant to the work of the agency (see Public Officers Law § 89 [2] [b] [iv], [v]). It is difficult to see how the public interest in the disclosure of the licensees’ home addresses outweighs the affected individuals’ legitimate privacy concerns (see Department of Defense v FLRA, 510 US 487, 495-497 [1994]). Although, as, the majority highlights, disclosure of home addresses has been ordered in the past (see e.g. Matter of Carnevale v City of Albany, 68 AD3d 1290, 1292 [2009]; Cornell Univ. v City of N.Y. Police Dept., 153 AD2d 515, 517 [1989]; Matter of New York Teachers Pension Assn. v Teachers’ Retirement Sys. of City of N.Y., 71 AD2d 250, 256-257 [1979]), in each of those cases the petitioner was seeking the information for the purpose of directly communicating with the subjects. Here, by contrast, petitioners are actively seeking to disseminate the licensees’ addresses and other information in some manner to the public, a distinction worth noting.2

The majority is persuaded by an advisory opinion by the Committee on Open Government in which the Committee opines that the Department could not refuse to deny disclosure of addresses for reasons nearly identical to those asserted herein. However, “the advisory opinions of the Committee on Open Government are neither binding upon the agency nor entitled to greater deference in [a CPLR] article 78 proceeding than is the construction of the agency” (Matter of Goyer v New York State Dept. of Envtl. Conservation, 12 Misc 3d at 270 [internal quotation marks and citations omitted]; accord Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 493 [1994]). The advisory opinion was noted by respondent and was specifically not followed. In adopting the reasoning of the advisory opinion, the majority does not address the fact that the licensees about whom such information will be released have not been heard in this proceeding. The statutory provisions of FOIL do not address their rights (see Cornell Univ. v City of N.Y. Police Dept., 153 AD2d at 516), but it nonetheless remains the proper role of the courts to take their rights into account, and afford proper protection to their interests. The underlying statute *1424governing this proceeding allows the court to direct that notice be given to interested persons, which would allow them an opportunity to intervene (see CPLR 7802 [d]; see also Matter of Greater N.Y. Health Care Facilities Assn. v DeBuono, 91 NY2d 716, 720 [1998]). Under the circumstances here, we would direct that notice be provided to the affected licensees pursuant to CPLR 7802 (d), specifically informing them of the nature of the proceeding and of the potential that their street address on file with respondent would be subject to public dissemination.3

Garry, J., concurs. Ordered that the judgment is reversed, on the law, without costs, and petition granted.

. Indeed, as averred by the director of the Division of Professional Licensing Services, many of the professionals licensed by the Department, such as nurses, physical therapists and occupational therapists, often work in home care settings. Thus, it is reasonable to infer that those individuals likely would not have a fixed business address to provide to respondent.

. In one communication with respondent, petitioners claim that the names and addresses of the veterinarians and veterinarian technicians in Schenectady County “must be released ... as a matter of public policy in these times of Global Terrorism [sic] [because it] is vital for the community to be able to know where qualified personnel are available to respond to emergencies.”

. This remedy would be in accord with the alternate relief respondent requested in Supreme Court, wherein the agency requested that it be provided with an opportunity to give notice of an impending disclosure to the affected licensees to allow them an opportunity to provide the agency with an alternate address if they so desired.