NY.gov Portal State Agency Listing

 

August 6, 1997

Mr. Richard J. Roberts
5919 East Henrietta Road
Rush, NY 14543

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. Roberts:

I have received your letter of July, as well as related
correspondence. You have sought an opinion concerning your right
to obtain in an electronic format "a RPS assessment file, which
includes the building inventory and sales data, for the Town of
Clarkstown." You expressed the belief that the Assessor's "main
objection is that the building inventory and sales data will be
used 'against' the town by firms representing individuals and
corporations seeking to reduce their assessments." You added that
the Town is willing to "release a disk or tape copy of what they
term the 'tax roll' but refuse to provide copies of the full RPS
file including inventory and sales data."

From my perspective, the Town is obliged to make the data in
question available, assuming that it has the ability to do so. 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)]. Therefore, if the records are
available by law, your intended use of the records would have no
effect on your rights of access.

I note that §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].


However, §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.

Also 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..."

Additionally, as you pointed out in your letter, while sales
records had been confidential in many instances, §574(5) of the
Real Property Tax Law concerning access to real property transfer
records was amended in 1993, and since July of 1994 has required
that "Forms or reports filed pursuant to this section or section
three hundred thirty-three of the real property law shall be made
available for public inspection or copying..." As such, that kind
of data is also available independent of the Freedom of Information
Law.

Second, the Freedom of Information Law pertains to all agency
records, and §86(4) of that statute defines the term "record"
expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the language quoted above, if information is maintained
in some physical form, it would in my opinion constitute a "record"
subject to rights of access conferred by the Law. Further, the
definition of "record" includes specific reference to computer
tapes and discs, and it was held more than ten years ago that "
[i]nformation is increasingly being stored in computers and access
to such data should not be restricted merely because it is not in
printed form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd
97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558
(1981)].

When information is maintained electronically, it has been
advised that if the information sought is available under the
Freedom of Information Law and may be retrieved by means of
existing computer programs, an agency is required to disclose the
information. In that kind of situation, the agency in my view
would merely be retrieving data that it has the capacity to
retrieve. Disclosure may be accomplished either by printing out
the data on paper or perhaps by duplicating the data on another
storage mechanism, such as a computer tape or disk. On the other
hand, if information sought can be retrieved from a computer or
other storage medium only by means of new programming or the
alteration of existing programs, those steps would, in my opinion,
be the equivalent of creating a new record. As stated earlier,
since §89(3) does not require an agency to create a record, I do
not believe that an agency would be required to reprogram or
develop new programs to retrieve information that would otherwise
be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218
(1991)].

In a decision of apparent relevance to your correspondence,
Brownstone Publishers Inc. v. New York City Department of
Buildings, the question involved an agency's obligation to transfer
electronic information from one electronic storage medium to
another when it had the technical capacity to do so and when the
applicant was willing to pay the actual cost of the transfer. As
stated by the Appellate Division, First Department:

"The files are maintained in a computer format
that Brownstone can employ directly into its
system, which can be reproduced on computer
tapes at minimal cost in a few hours time-a
cost Brownstone agreed to assume (see, POL
[section] 87[1] [b] [iii]). The DOB,
apparently intending to discourage this and
similar requests, agreed to provide the
information only in hard copy, i.e., printed
out on over a million sheets of paper, at a
cost of $10,000 for the paper alone, which
would take five or six weeks to complete.
Brownstone would then have to reconvert the
data into computer-usable form at a cost of
hundreds of thousands of dollars.

"Public Officers Law [section] 87(2) provides
that, 'Each agency shall...make available for
public inspection and copying all records...'
Section 86(4) includes in its definition of
'record', computer tapes or discs. The policy
underlying the FOIL is 'to insure maximum
public access to government records' (Matter
of Scott, Sardano & Pomerantz v. Records
Access Officer, 65 N.Y.2d 294, 296-297, 491
N.Y.S.2d 289, 480 N.E.2d 1071). Under the
circumstances presented herein, it is clear
that both the statute and its underlying
policy require that the DOB comply with
Brownstone's reasonable request to have the
information, presently maintained in computer
language, transferred onto computer tapes"
[166 Ad 2d, 294, 295 (1990)].

Further, in a decision that cited Brownstone, it was held that:
"[a]n agency which maintains in a computer format information
sought by a F.O.I.L. request may be compelled to comply with the
request to transfer information to computer disks or tape" (Samuel
v. Mace, Supreme Court, Monroe County, December 11, 1992). That
decision involved a request for a school district wide mailing list
in the form of computer generated mailing labels. Since the
district had the ability to generate the labels, the court ordered
it to do so.

Most recently, in a decision involving records analogous to
those that are the subject of your inquiry that were requested by
a person seeking the records in order challenge assessments, it was
held that the records must be made available, in electronic form,
for the actual cost of reproduction (see attached, Simpson v. Town
of East Hampton, Supreme Court, Suffolk County, June 4, 1997).

As you requested, copies of this opinion will be forwarded to
the Town Attorney.


I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

 

cc: Murray Jacobson, Town Attorney