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December 28, 1998

 

Mr. Dan Giblin
Dan Giblin Appraisal Service, Inc.
P.O. Box 132
Chenango Falls, NY 13746-0132

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. Giblin:

I have received your letter of December 2. You described a series of difficulties and
raised a variety of questions concerning your ability to gain access to records relating to the
assessment of real property to by the Town of Owego.

In this regard, I offer the following comments.

First, as a general matter, 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.

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.

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, 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.

Second, the language of the Freedom of Information Law and the regulations
promulgated by the Committee on Open Government indicate that, absent statutory authority,
an agency may charge fees only for the reproduction of records. Section 87(1)(b) of the
Freedom of Information Law states:

"Each agency shall promulgate rules and regulations in
conformance with this article...and pursuant to such general
rules and regulations as may be promulgated by the committee
on open government in conformity with the provisions of this
article, pertaining to the availability of records and procedures
to be followed, including, but not limited to...

(iii) the fees for copies of records which shall
not exceed twenty-five cents per photocopy
not in excess of nine by fourteen inches, or the
actual cost of reproducing any other record,
except when a different fee is otherwise
prescribed by statute."

The regulations promulgated by the Committee state in relevant part that:

"Except when a different fee is otherwise prescribed by
statute:

(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part" (21
NYCRR 1401.8)."

Based upon the foregoing, it is likely that a fee for reproducing electronic information
would involve the cost of computer time, plus the cost of an information storage medium (i.e.,
a computer tape or disk) to which data is transferred.

Although compliance with the Freedom of Information Law involves the use of public
employees' time and perhaps other costs, the Court of Appeals has found that the Law is not
intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's
legitimate right of access to information concerning government is fulfillment of a
governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48
NY 2d 341, 347 (1979)].

Lastly, the Freedom of Information Law provides direction concerning the time and
manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of
Information Law states in part that:

"Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a
record reasonably described, shall make such record available
to the person requesting it, deny such request in writing or
furnish a written acknowledgement of the receipt of such
request and a statement of the approximate date when such
request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given
within five business days, or if an agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my opinion, be considered
to have been constructively denied. In such a circumstance, I believe that the denial may be
appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision
states in relevant part that:

"...any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive, or
governing body, who shall within ten business days of the
receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide
access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not
rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of
the Freedom of Information Law, the appellant has exhausted his or her administrative
remedies and may initiate a challenge to a constructive denial of access under Article 78 of
the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774
(1982)].

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

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Carol B. Sweeney
Hon. Michael E. Zimmer