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June 25, 1998

 

Hon. Shirley Murray
Town Clerk
Town of Wilton
22 Traver Road
Gansevoort, NY 12831-9127

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 Ms. Murray:

I have received your communication of June 4, as well as related materials.

You have sought my views concerning a request for "decisions by the Board of
Assessment Review on tax grievances or protests in 1998" and "complaints regarding
tentative assessments filed by property taxpayers in the Town of Wilton in May of 1998." It
is your assumption that the person seeking the records "wants to use this information for
commercial purposes." Since it appears that the person making the request, an attorney,
intends to use the records for the purpose of soliciting clients, it appears that your assumption
is accurate. Ordinarily in that kind of circumstance, §89(2)(b)(iii) of the Freedom of
Information Law could be asserted. That provision, as you are aware, authorizes an agency
to withhold the list of names and addresses if the list would be used for commercial or fund-raising purposes. Further, in a somewhat similar circumstance in which a law firm sought
accident reports for the purpose of soliciting clients, i.e., accident victims, the Court of
Appeals found that the identifying details could be withheld [see Scott, Sardano & Pomeranz
v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985)].

Nevertheless, in a recent judicial decision, Hudson v. Jurczynski (Supreme Court,
Schenectady County, February 2, 1998), it was determined that the records in question must
be disclosed. The Court indicated that the records sought were available under other
provisions of law, citing §516(2) of the Real Property Tax Law, §51 of the General Municipal
Law and §208(4) of the County Law. When records are available under a provision of law
other than the Freedom of Information Law, those records remain available notwithstanding
the grounds for denial in the Freedom of Information Law [see Freedom of Information Law,
§89(6)]. You wrote, however, that you "can find nothing in the Real Property [Tax] Law
requiring disclosure of these records." Therefore, you asked whether you should deny access
to the records requested in their entirety or provide access to the records after deleting the
names and addresses of property owners. In this regard, I offer the following comments.

First, the Hudson decision deals with exactly the same records that have been
requested from the Town. Consequently, there is precedent from a neighboring county
indicating that those same records must be disclosed. Should you withhold the records and
face a challenge to a denial in court, the extent to which the Supreme Court in Saratoga
County would agree with or rely upon the Hudson case as precedent is conjectural. In short,
denying access to any portion of the records would represent something of a risk on the part
of the Town.

On the other hand, I agree with your contention that §516 of the Real Property Tax
Law does not refer to the kinds of records at issue. That provision pertains only to the
assessment roll; it makes no reference to the records requested by Mr. Hudson.

The other statutes cited by the Court were enacted prior to the Freedom of
Information Law and appear to provide broad rights of access, for they refer to all records
maintained by certain municipalities being available. Here I point out that the Court of
Appeals has dealt with the argument that §51 of the General Municipal Law should be treated
literally to grant access to all records of a municipality and has rejected that contention. In
Xerox Corp. v. Town of Webster [65 NY 2d 131 (1985)], the Court determined that the
exceptions appearing in the Freedom of Information Law should be construed as having been
"engrafted" on §51 of the General Municipal Law (id., 132). Therefore, if, for example,
records would apparently be available under the General Municipal Law or the County Law
sections cited by the Court, but an exception in the Freedom of Information Law would
otherwise authorize an agency to deny access, the agency, according to the State's highest
Court, would have the ability to do so.

In sum, for the reasons expressed above, the basis for the Court's determination in
Hudson is, in my view, questionable. Whether the Town would want to encourage judicial
review of the matter in Saratoga County involves a determination to be made by Town
officials.

I regret that I cannot be of greater assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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