| Matter of Schenectady County Socy. for the Prevention of Cruelty toAnimals, Inc. v Mills |
| 2010 NY Slip Op 04679 [74 AD3d 1417] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Schenectady County Society for the Prevention ofCruelty to Animals, Inc., Appellant, et al., Petitioner, v Richard P. Mills, as Commissioner ofEducation of the State of New York, Respondent. |
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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 toCPLR article 78, to review a determination of respondent partially denying petitioners' Freedomof 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 alllicensed veterinarians and veterinary technicians located in Schenectady County.[FN1] Respondent provided [*2]petitioners with a list of thoseindividuals, along with the city and state portion of their addresses, but refused to disclose thelicensees' street addresses, stating that the release of such information would constitute anunwarranted invasion of personal privacy (see Public Officers Law § 87 [2] [b]).After an unsuccessful administrative appeal, petitioners commenced this CPLR article 78proceeding. Supreme Court dismissed the petition and petitioner Schenectady County Society forthe Prevention of Cruelty to Animals, Inc. (hereinafter petitioner) appeals.
FOIL "impos[es] a broad standard of open disclosure in order to achieve maximum publicaccess 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 mustconstrue FOIL liberally, such that government records are presumptively available for publicinspection unless a statutory exemption applies (see Matter of Capital Newspapers Div. ofHearst Corp. v Burns, 67 NY2d 562, 566 [1986]; Matter of Westchester RocklandNewspapers v Kimball, 50 NY2d 575, 580 [1980]; Matter of New York State United Teachers v Brighter Choice CharterSchool, 64 AD3d 1130, 1131 [2009], lv granted 13 NY3d 712 [2009]; seealso 21 NYCRR 1401.1 [d]). "Exemptions are narrowly construed, with the agency thatseeks to prevent disclosure bearing the burden of demonstrating that the requested material fallssquarely within an exemption by articulating a particularized and specific justification fordenying access" (Matter of Carnevale vCity of Albany, 68 AD3d 1290, 1292 [2009] [citations omitted]; see PublicOfficers Law § 89 [4] [b]; Matter of Capital Newspapers Div. of Hearst Corp. vBurns, 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 itrequested.
Respondent asserts that the street addresses of licensees were exempt because their"disclos[ure] would constitute an unwarranted invasion of personal privacy" (Public OfficersLaw § 87 [2] [b]). The Legislature clarified the personal privacy exemption by providingcertain categories of information that would fall within its terms (see Public OfficersLaw § 89 [2] [b]). Although that list is nonexclusive, respondent did not meet his burdenof establishing that any of those categories applies here, or that the disclosure of street addresseswill necessarily constitute an "unwarranted invasion of personal privacy" (Public Officers Law§ 87 [2] [b]; § 89 [2] [b]). While this Court has noted that "[d]isclosing a person'shome address implicates a heightened privacy concern" (Matter of New York State UnitedTeachers v Brighter Choice Charter School, 64 AD3d at 1132), we have also ordereddisclosure of home addresses where the agency failed to provide proof that such disclosure fellwithin the personal privacy exemption (see Matter of Carnevale v City of Albany, 68AD3d 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 andthe agency is unable to distinguish whether the licensee has supplied a business or homeaddress.[FN2] A business address would not implicate personal privacy and would be available under [*3]FOIL (see American Broadcasting Cos. v Siebert, 110 Misc2d 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 Governmentopined that if an agency was unsure whether the addresses it maintained were home or businessaddresses, the agency could not "justify a denial of access based on its contention that some, butnot 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 physicaltherapists licensed by Department of Education]). Though that opinion is not binding, theCommittee's reasoning leads us to agree with its conclusion (see Matter of John P. vWhalen, 54 NY2d 89, 96 [1981]; Matter of Csorny v Shoreham-Wading Riv. Cent.School Dist., 305 AD2d 83, 90 [2003]).[FN3]
The dissent engages in a weighing of the public interest in the information versus the privacyinterests involved. While such an analysis is appropriate when considering whether the personalprivacy exemption applies absent the applicability of a specific statutory category (see Matter of New York Times Co. v Cityof 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 thedisclosure of home addresses affects these interests.[FN4] The underlying problem is that the record fails to establish that home [*4]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 addressescould affect the balance. Without such proof, however, we cannot prevent disclosure of alladdresses based on speculation that we may be risking the inadvertent disclosure of privateinformation.[FN5]
Finally, the dissent suggests that we should direct that notice of this proceeding be providedto the affected licensees, which would allow them an opportunity to intervene. Initially, thestatutory provisions of FOIL do not address the rights of individuals whose information may beincluded in government documents that are subject to disclosure (see Cornell Univ. v City ofN.Y. Police Dept., 153 AD2d at 516). While courts have discretion to order notice of aproceeding to any person (see CPLR 7802 [d]), this relief was not requested byrespondent. 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 alternativeaddresses if they so choose. Respondent also submitted the affidavit of the director of theDivision of Professional Licensing Services, who stated that the present records did notdistinguish between home and business addresses, therefore figuring out which type of addresswas listed would require respondent to solicit additional information from licensees, which FOILdoes 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 therequest in his memorandum of law, respondent wants to have it both ways. He basically arguedthat he could not be required to contact licensees for additional information and could not berequired to create a new record, then asked for an opportunity to do what FOIL does not requireonly if the court found against him. Although courts have discretion to provide notice of aproceeding to any person, if respondent was so concerned about the licensees' privacy, he couldhave contacted them and determined whether they had provided home addresses prior to thecourt issuing an order, allowing him to resolve the case by redacting home addresses and turningover the information without any court involvement. Instead, his request to the court wouldactually contravene the purposes of FOIL by creating a new record of addresses in response to aFOIL request to avoid disclosing the original records. This we cannot condone.
Respondent acknowledges a lack of awareness regarding which licensees provided homeaddresses and which provided business addresses. The record contains only speculation that anyof the requested addresses are home addresses. Respondent therefore has not met his burden ofestablishing that the personal privacy exemption applies. With the agency having failed toestablish an exemption, FOIL's broad standard of open disclosure and presumption ofavailability require that the street addresses be disclosed. Accordingly, Supreme Court'sjudgment is reversed and the petition is granted in its entirety.[*5]
Mercure, J.P., and Lahtinen, J., concur.
Malone Jr., J. (dissenting). The Department of Education is responsible for maintaining adatabase containing licensing information for nearly 800,000 registered individuals working in47 professions in New York, including certified public accountants, dentists, doctors, nurses,psychologists, social workers and veterinarians. These individuals are required to provide theDepartment with one current mailing address at which they can receive information regardingtheir 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 Departmentrequires only one address and does not require a specific type of address to be provided by thelicensees, its database is not equipped to differentiate between residential and businessaddresses.[FN1]
Petitioners here requested from respondent information regarding all of the licensedveterinarians and veterinary technicians located in Schenectady County. Notably, petitionersexpressly 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 businessinformation 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 asto whether the addresses that are maintained by respondent are the licensees' business orresidential addresses. According to respondent, at least some of the addresses are residential innature. Because we would consider the disclosure of the licensees' residential addresses to be anunwarranted invasion of privacy, we cannot agree with the majority's conclusion that respondentis required to disclose every street address regardless of whether it is residential orbusiness—a disclosure that would be more broad than that sought by petitioners' limitedrequest.
Although the disclosure here does not squarely fit within any of the six statutorilyenumerated privacy exceptions (see Public Officers Law § 89 [2] [b]), that list isnot exhaustive. When, as in this case, none of the exceptions is applicable, "we must decidewhether any invasion of privacy here is 'unwarranted' by balancing the privacy interests at stakeagainst the public interest in disclosure of the information" (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d477, 485 [2005]). This Court has stated that the disclosure of an individual's "home addressimplicates a heightened privacy concern" (Matter of New York State United Teachers v Brighter Choice CharterSchool, 64 AD3d 1130, 1132 [2009], lv granted 13 NY3d 712 [2009]; seeMatter of Goyer v New York State Dept. of Envtl. Conservation, 12 Misc 3d 261, 270-271[2005]). It is reasonable to infer that these licensees—as well as the nearly 800,000 otherlicensees for whom respondent collects such information—may be relying on thegovernment to be discreet in performing its custodial duties and to protect their personal [*6]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 publicinterest 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 inthe past (see e.g. Matter of Carnevale vCity of Albany, 68 AD3d 1290, 1292 [2009]; Cornell Univ. v City of N.Y. PoliceDept., 153 AD2d 515, 517 [1989]; Matter of New York Teachers Pension Assn. vTeachers' Retirement Sys. of City of N.Y., 71 AD2d 250, 256-257 [1979]), in each of thosecases the petitioner was seeking the information for the purpose of directly communicating withthe subjects. Here, by contrast, petitioners are actively seeking to disseminate the licensees'addresses and other information in some manner to the public, a distinction worthnoting.[FN2]
The majority is persuaded by an advisory opinion by the Committee on Open Government inwhich the Committee opines that the Department could not refuse to deny disclosure ofaddresses for reasons nearly identical to those asserted herein. However, "the advisory opinionsof the Committee on Open Government are neither binding upon the agency nor entitled togreater 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 BuffaloEnter. Dev. Corp., 84 NY2d 488, 493 [1994]). The advisory opinion was noted byrespondent 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 bereleased have not been heard in this proceeding. The statutory provisions of FOIL do not addresstheir rights (see Cornell Univ. v City of N.Y. Police Dept., 153 AD2d at 516), but itnonetheless remains the proper role of the courts to take their rights into account, and affordproper protection to their interests. The underlying statute governing this proceeding allows thecourt to direct that notice be given to interested persons, which would allow them an opportunityto intervene (see CPLR 7802 [d]; see also Matter of Greater N.Y. Health CareFacilities Assn. v DeBuono, 91 NY2d 716, 720 [1998]). Under the circumstances here, wewould 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 streetaddress on file with respondent would be subject to public dissemination.[FN3]
Garry, J., concurs. Ordered that the judgment is reversed, on the law, without costs, andpetition granted.
Footnote 1: The dissent notes thatrespondent is responsible for maintaining licensing information for nearly 800,000 individualsengaged in 47 different professions across the state. While that may be interesting trivia, thisproceeding only deals with individuals engaged in two professions in one county.
Footnote 2: On this point, respondentsubmitted the affidavit of the director of the Division of Professional Licensing Services. TheDivision regulates 47 professions, and the affidavit is clearly based upon the director'sexperience in general—as noted by his examples relating to speech-language pathologists,occupational therapists and licensees who work in prisons—rather than to the specificrecords relating to veterinarians or veterinary technicians. While the director affirms that,"[b]ased 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 conclusionis an assumption rather than a fact-based statement. Contrary to the dissent's suggestion, we willnot rely on inferences or speculation to establish respondent's burden.
Footnote 3: As the dissent points out,respondent was aware of this advisory opinion and specifically chose not to follow it withoutexplaining why he disagreed with the opinion. Additionally, being on notice of that 2006opinion, respondent apparently did nothing to revise the agency's method of collecting addressesfrom licensees either by asking for separate business and home address information or informinglicensees that any address they provided could be subject to disclosure. Respondent now desiresto have this Court protect the privacy of licensees in light of his failure to take any action toimprove his record-keeping procedures.
Footnote 4: The dissent also stresses therequesters' purpose for seeking the information, which is generally irrelevant when determiningif the documents are available under FOIL (see Matter of Capital Newspapers Div. of HearstCorp. v Burns, 67 NY2d at 566-567).
Footnote 5: While the dissent feels thatthere is a question of fact regarding whether respondent maintains licensees' business orresidential addresses, that question is based on a speculative affidavit and inferences drawn fromthat affidavit. If, however, such a question exists, it was created by respondent's inexactrecord-keeping. We cannot allow him to meet his burden of proving an exemption under FOILby relying on his own inadequate practices.
Footnote 1: Indeed, as averred by thedirector of the Division of Professional Licensing Services, many of the professionals licensedby the Department, such as nurses, physical therapists and occupational therapists, often work inhome care settings. Thus, it is reasonable to infer that those individuals likely would not have afixed business address to provide to respondent.
Footnote 2: In one communication withrespondent, petitioners claim that the names and addresses of the veterinarians and veterinariantechnicians in Schenectady County "must be released . . . as a matter of publicpolicy in these times of Global Terrorism [sic] [because it] is vital for the community tobe able to know where qualified personnel are available to respond to emergencies."
Footnote 3: This remedy would be in accordwith the alternate relief respondent requested in Supreme Court, wherein the agency requestedthat it be provided with an opportunity to give notice of an impending disclosure to the affectedlicensees to allow them an opportunity to provide the agency with an alternate address if they sodesired.