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May 5, 1997

 

 

 

Mr. George R. Simpson, President
Office Management Systems Corp.
PO Box 775
Hampton Bays, NY 11946

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.

Dear Mr. Simpson:

I have received your letter of April 14 and the materials
related to it.

As I understand the matter, the issue involves rights of
access to computer generated lists of real property inventory data.
In a memorandum prepared by Robert E. Marcincuk, Deputy Town
Attorney for the Town of Southampton, it was advised that the
Freedom of Information Law authorizes an agency to withhold a list
of names and addresses if the list would be used for commercial or
fund-raising purposes, and that, therefore, "prior to releasing the
real property inventory information, an applicant must submit a
certification stating the requested information will not be used
for commercial or fund-raising purposes" (emphasis his). You wrote
that Mr. Marcincuk has claimed that there is "new case law" that
justifies his position, which you have questioned.

From my perspective, the issue involves whether access to the
records is governed by a provision of law other than or in addition
to the Freedom of Information Law. In this regard, I offer the
following comments.

First, as a general matter, the reasons for which a request is
made and an applicant's potential use of records are 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].

I would surmise that Mr. Marcincuk was alluding to the Siegel
decision, which involved a list apparently derived from assessment
data in which the court upheld the agency's ability to withhold the
data absent a certification that the firm requesting the list would
not use the list for a commercial or fund-raising purpose.

Second, §89(6) of the Freedom of Information Law 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.

In the context of a request for the data in question sought
for a commercial purpose, if the Freedom of Information Law solely
governs rights of access, an agency could in my view seek the kind
of certification referenced earlier. If a different statute
requires disclosure independent of the Freedom of Information Law,
I believe that an agency would be required to disclose,
notwithstanding the intended use of the data.

Pertinent to your inquiry is §501 of the Real Property Tax
Law, entitled "Examination of assessment inventory and valuation
data." That statute requires the publication of a notice stating
"that the assessor has available for review assessment inventory
and valuation data, that an appointment may be made to review this
information during certain times as specified in the notice..."
Having discussed the matter with a representative of the State
Office of Real Property Services, it was suggested that if the term
"review" is construed to include inspection and copying, §501 would
require disclosure to any person, irrespective of the intended use
of the data. However, if that term is construed to mean only the
right to inspect, a different conclusion might be reached. In
short, resolution of the matter appears to involve the
interpretation of §501 of the Real Property Tax Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Robert E. Marcincuk