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Town List of Names and Email Addresses is Subject to Freedom of Information Law

The Appellate Division determined that the names and email addresses of those who subscribe to an email alert system of updates to a  Town Website are subject to the Freedom of Information Law (FOIL). In Matter of Livson v. Town of Greenburgh, the Court affirmed the lower court determination that the Petitioner, who is the president of a local civic association, is entitled to the names and email addresses of those subscribing to the alert system maintained by the Town (gblist). The Court found the list was not, as the Town claimed, protected by any of the exemptions from disclosure contained in the FOIL statute.

Prior to the commencement of the Article 78 proceeding, The Town had claimed ” [t]here is neither a print or extract function on the software that can reasonably create a list of email addresses.” Yet, it was determined that the Town’s vendor could provide such a list.  As a result, the lower court determined that the request for an electronic version of the list could be made available provided the recipient did “not reproduce, redistribute or circulate the gblist or use the information contained therein for solicitation, fund-raising or any commercial purpose.”  The Town filed an appeal claiming that the list was exempt from disclosure.

In affirming the lower court, the Appellate Division noted:

“[r]ecords held by third parties on behalf of a government agency are ‘records’ which are presumptively subject to disclosure pursuant to FOIL … a government agency’s lack of physical possession of such records is immaterial…”

The Court went on to note that in claiming an exemption, the government entity must demonstrate that requested documents fit “squarely” within an exemption from disclosure. It reiterated that the application of the statutory exemptions must be narrowly construed.

Using those rules as the framework for its determination, the Court went on to state:

“[h]ere, the Town parties did not articulate the applicability of any enumerated exemptions under Public Officers Law § 89(2)(b), nor did they show that the privacy interests at stake outweigh the public interest in disclosure of the information (see Public Officers Law § 87[2][b]…. The petitioner seeks ‘to further the public discourse on matters of public importance and concern in the Town’ by obtaining the names and email addresses of those persons who subscribe to the gblist—persons who have willingly divulged that information to the Town so that they may receive news and information, in electronic form, on matters of public concern in the Town. The Town parties did not articulate any privacy interest that would be at stake in the disclosure of the records.”

Significantly, in rejecting the argument that the release could result in an unwarranted invasion of personal privacy, the Court held:

“[t]he Town parties’ contention that disclosure of the requested email addresses would render the gblist subscribers more susceptible to phishing, spamming, and other email scams is speculative; the Town parties failed to show that disclosure of the information would make the gblist subscribers more susceptible to such acts than they ordinarily would be.”

This holding appears to be part of a trend among the courts to broaden the scope of disclosure pursuant to FOIL.

-Steven Silverberg