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FOIL-AO-13630
September 24, 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 facts presented in your correspondence.

Dear

I have received your letter and apologize for the delay in response. You wrote that the Town
of Rye has received a request for "all records regarding assessments to properties owned by Senior
Citizens which have any exemptions for veterans, combat veterans, alternate non-combat veterans,
disabled, etc." You specified that the Town "maintains no separate lists other than the regular
assessments of all properties of the Town." That being so, you have sought my views concerning
your obligations in relation to the request.

In this regard, first and perhaps most importantly, the Freedom of Information Law pertains
to existing records, and §89(3) states in relevant part that "Nothing in this article shall be construed
to require any entity to prepare any record not possessed or maintained by such entity..." Therefore,
if there are no separate lists or other records that pertain to or identify those property owners by
means of the characteristics described in your letter, the Town, in my view, would not be required
to prepare new records or lists that identify property owners with those characteristics. In short, an
applicant is entitled to gain access, to the extent required by law, to existing records maintained by
the Town; the Town is not required to create a new record in an effort to accommodate an applicant.

Second, insofar as the items sought are contained in the Town's assessment roll, I believe
that they would be available through the disclosure of that record. When the assessment roll is made
available, the applicant would have the ability to review it and extract information from it as he or
she sees fit.

With respect to rights of access, as you are 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.

Long before the enactment of the Freedom of Information Law, it was established by the
courts that records pertaining to the assessment of real property are generally available [see e.g.,
Sears Roebuck & Co. v. Hoyt, 107 NYS 2d 756 (1951); Sanchez v. Papontas, 32 AD 2d 948 (1969).
For instance, index cards containing a variety of information concerning specific parcels of real
property have long been accessible to the public.

I note, too, that the reasons for which a request is made and an applicant's potential use of
records are generally irrelevant, and it has been held that if records are accessible, they should be
made equally available to any person, without regard to status or interest [see e.g., M. Farbman &
Sons v. New York City, 62 NYS 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51
AD 2d 673, 378 NYS 2d 165 (1976)]. However, §89(2)(b)(iii) of the Freedom of Information Law
permits an agency to withhold "lists of names and addresses if such list would be used for
commercial or fund-raising purposes" on the ground that disclosure would constitute an
unwarranted invasion of personal privacy. Due to the language of that provision, the intended use
of a list of names and addresses or its equivalent may be relevant, and case law indicates that an
agency can ask that an applicant certify that the list would not be used for commercial purposes as
a condition precedent to disclosure [see Golbert v. Suffolk County Department of Consumer Affairs,
Sup. Ct., Suffolk Cty., (September 5, 1980); also, Siegel Fenchel and Peddy v. Central Pine Barrens
Joint Planning and Policy Commission, Sup. Cty., Suffolk Cty., NYLJ, October 16, 1996].

In the case of a request for an assessment roll, §89(6)is pertinent, for that provision states
that:

"Nothing in this article shall be construed to limit or abridge any
otherwise available right of access at law or in equity to any party to
records."

Therefore, if records are available as of right under a different provision of law or by means of
judicial determination, nothing in the Freedom of Information Law can serve to diminish rights of
access. In Szikszay v. Buelow [436 NYS 2d 558, 583 (1981)], it was determined that an assessment
roll maintained on computer tape must be disclosed, even though the applicant requested the tape
for a commercial purpose, because that record is independently available under a different provision
of law, Real Property Tax Law, §516. Since the assessment roll must be disclosed pursuant to the
Real Property Tax Law, the restriction concerning lists of names and addresses in the Freedom of
Information Law was found to be inapplicable.

Lastly, since you indicated that the request involved "all records" relating to certain
assessments and exemptions, I believe that certain records used in determining assessments may be
withheld. For instance, for senior citizens to apply for STAR exemptions, they must submit records
that include personal financial details. Having discussed the issue with representatives of the Office
of the Office of Real Property Services, we agree that income tax forms or other personal financial
information submitted by senior citizens seeking STAR exemptions may be withheld form the
public. Although the Freedom of Information Law is based upon a presumption of access, §87(2)(b)
authorizes an agency to withhold records insofar as disclosure would result in "an unwarranted
invasion of personal privacy." The New York State Tax Law contains provisions that require that
confidentiality of records reflective of the particulars of a person's income or payment of taxes (see
e.g., §697, Tax Law). As such, it would appear that the Legislature felt that disclosure of records
concerning taxpayers' income would constitute an improper or "unwarranted" invasion of personal
privacy.

In short, I believe that an agency, such as the Town of Rye, has clear authority to withhold
records submitted by residents insofar as they include intimate or sensitive details of their lives,
including copies of tax forms given to assessors in conjunction with an application for a STAR
exemption. Similarly, insofar as other records submitted by property owners, such as military
discharge and separation papers, include intimate personal information (i.e., social security
numbers, descriptions of disabilities, etc.), those details may in my view be withheld on the ground
that disclosure would constitute an unwarranted invasion of personal privacy.

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
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