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FOIL-AO-13146

January 23, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.

Dear Mr. Hoffmann:

I appreciate having received a copy of your determination of an appeal made under the Freedom of Information Law by Assemblyman Steve Levy. Assemblyman Levy, in your words, sought "a list of property owners with veterans' tax exemptions and alternate veterans' exemptions in the Town of Islip." You referred to advisory opinions rendered by this office as the basis for your denial of his appeal on the ground that disclosure would constitute "an unwarranted invasion of personal privacy."

From my perspective, your reliance on the opinions that you cited is misplaced and the information sought should be disclosed. In this regard, I offer the following comments.

First, as you are likely aware, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

Second, one of the exceptions to rights of access, §87(2)(b), involves the basis for denial of access to which you referred. That provision, as you correctly state in your determination, is intended to protect against unwarranted invasions of privacy as records relate to natural persons, as opposed to entities such as corporations. However, not every disclosure of personally identifiable information would constitute an "unwarranted" invasion of personal privacy; on the contrary, many disclosures, as in this instance, involve a permissible invasion of privacy.

This is so particularly in relation to records involving the assessment of real property. As a general matter, records used or prepared in relation to assessments and the evaluation of real property have been found to be available to the public, even before the enactment of the Freedom of Information Law [see e.g., Sanchez v. Papontas, 32 AD2d 948 (1969); Sears Roebuck & Co. v. Hoyt, 107 NYS2d 756 (1951); Szikszay v. Buelow, 436 NYS2d 558, 107 Misc. 2d 886 (1981)]. Szikszay involved a request for an assessment roll that was prepared both in traditional paper format and on computer tape. The court determined that the assessment roll, which included personal information, must be disclosed under both the Freedom of Information Law and §516 of the Real Property Tax Law, irrespective of the intended use of its contents. I note that the court referred to §89(6) [formerly §89(5)] of the Freedom of Information Law, which provides, in brief, that nothing in that statute can serve to diminish rights of access to records conferred by another statute or by means of judicial determination.

Specifically, the Court in Szikszay found that:

"An assessment roll is a public record (Real Property Tax Law [section] 516 subd. 2; General Municipal Law [section] 51; County Law [section] 208 subd. 4). It must contain the name and mailing or billing address of the owner of the parcel (Real Property Tax Law [sections] 502, 504, 9 NYCRR [section] 190-1(6)(1)). Such records are open to public inspection and copying except as otherwise provided by law (General Municipal Law [section] 51; County Law [section] 208 subd. 4). Even prior to the enactment of the Freedom of Information Law, and under its predecessor, Public Officers Law [section] 66, repealed L.1974, c. 578, assessment rolls and related records were treated as public records, open to public inspection and copying (Sanchez v. Papontas, 32 A.D.2d 948, 303 N.Y.S.2d 711, Sears Roebuck & Co. v. Hoyt, 202 Misc. 43, 107 N.Y.S.2d 756; Ops. State Comptroller 1967, p. 596)" (id. at 562, 563).

Further, in discussing the issue of privacy, it was held that:

"The Freedom of Information Law limits access to records where disclosure would constitute 'an unwarranted invasion of personal privacy' (Public Officers Law [section] 87 subd. 2(b), [section] 89 subd. 2(b)iii). In view of the history of public access to assessment records, and the continued availability of such records to public inspection, whatever invasion of privacy may result by providing copies of A.R.L.M. computer tapes to petitioner would appear to be permissible rather than 'unwarranted' (cf. Advisory Opns. of Committee on Public Access to Records, June 12, 1979, FOIL-AO-1164). In addition, considering the legislative purpose behind the Freedom of Information Law, it would be anomalous to permit the statute to be used as a shield by government to prevent disclosure. In this regard, Public Officers Law [section] 89 subd. 5 specifically provides: 'Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records.'" [id. at 563; now section 89(6)].

The court stated further that:

"...the records in question can be viewed by any person and presumably copies of portions obtained, simply by walking into the appropriate county, city, or town office. It appears that petitioner could obtain the information he seeks if he wanted to spend the time to go through the records manually and copy the necessary information. Therefore, the balancing of interests, otherwise required, between the right of individual privacy on the one hand and the public interest in dissemination of information on the other...need not be undertaken...

"Assessment records are public information pursuant to other provisions of law and have been for sometime. The form of the records and petitioner' s purpose in seeking them do not alter their public character or petitioner's concomitant right to inspect and copy" (id.).

In Szikszay, as in this instance, because the assessment roll has long been available under the Real Property Tax Law and through judicial decisions, an exception in the Freedom of Information Law cannot apply as a basis for a denial of access.

In an effort to ensure the accuracy of the foregoing, I contacted the Office of Real Property Services and discussed the matter with its attorney who specializes in disclosure issues. He informed me that the assessment roll, which, again, is clearly accessible to the public, includes reference to veterans' exemptions, either directly or by means of a code that is available to and can be used by the public. As such, the information sought by Assemblyman Levy appears on a record which is itself available to the public. Since you suggested that the denial was based in part on your contention that disclosure would reveal a person's income level, the attorney added that information on the assessment roll does not contain information regarding one's income, but rather the value of real property.

Lastly, the fact that a person has served in the armed forces and is a veteran is not secret. That information has long been available from the federal government under the federal Freedom of Information Act.

In short, for the reasons offered in the preceding remarks, I believe that the determination is inconsistent with law and that Assemblyman Levy's request should have been granted.

I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Steve Levy