What constitutes 'solicitation' under FOIL? |
On Board Online • September 2, 2024
By Shubh N. McTague
Staff Counsel
In Freedom Foundation v. Jefferson County, the Appellate Division of the state Supreme Court, Fourth Department upheld the county's denial of a not-for-profit organization's request seeking the names, addresses and email addresses of all county employees covered by a particular collective bargaining agreement. Part of the county's reasoning was disclosure would constitute an unwarranted invasion of personal privacy because the information sought would be used for "solicitation" purposes (in this case, urging employees to opt-out of union membership).
The ruling involved the state Freedom of Information Law (FOIL), which is part of the Public Officers Law. It requires government bodies and agencies, including school districts, to allow the public access to official documents and records. However, FOIL contains exceptions, including one that prevents disclosure of records that would constitute an "unwarranted invasion of personal privacy." While FOIL provides a non-exhaustive list of what could constitute an unwarranted invasion of personal privacy, one of those specifically included is the sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes.
Initially, a state Supreme Court found in favor of the petitioner, defining solicitation as a "financial benefit or fund-raising." The court stated that the petitioner's reason for obtaining the information ("to educate workers as to the rights they have regarding membership in their union") did not fall within this definition.
However, the Fourth Department found in favor of the county. The court stated that there is no definition of solicitation found within the Public Officers Law. This has also been noted by the New York State Committee on Open Government (COOG), which provides advisory opinions on FOIL as well as the Open Meetings Law. In a 2009 opinion, COOG stated that it believed solicitation involved "an effort to sell some sort of product or service."
Notwithstanding COOG's opinion, the Fourth Department turned to the dictionary to garner the ordinary meaning of the word. Solicitation is defined in one source as "the act or an instance of requesting or seeking to obtain something; a request or petition" and in another source as "to make a petition to," "to approach with a request or plea," or "to urge." The court stated that based on these definitions, there is no requirement for financial gain included within them.
Because it found that the petitioner's intent of the FOIL request was to "urge" members of the union to opt out of membership, the court held that the unwarranted invasion of personal privacy exception applied to the information sought by the petitioner, as originally claimed by the county, and dismissed the case.
While no other appellate court in New York has of yet defined solicitation in this context, school districts in other parts of the state not covered by the Fourth Department may find this decision persuasive in dealing with FOIL requests that implicate this exception instead of relying on the opinion from COOG.