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May 23, 2000

FOIL-AO-12110

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

I have received your letter of April 20, as well as your more recent, undated
correspondence. You have sought assistance in obtaining records indicating real property
taxes paid in relation to a certain parcel in the Town of Darien.

In this regard, I offer the following comments.

First, pursuant to the regulations promulgated by the Committee on Open
Government (21 NYCRR Part 1401), each agency is required to designate one or more
persons as "records access officer." That person has the duty of coordinating an agency's
response to requests, and a request should ordinarily be made to him or her. In the majority
of towns, the town clerk is the records access officer, for he or she is the custodian of all town
records (see Town Law, §30). Irrespective of which Town official received the request, I
believe that he or she should have responded in a manner consistent with the Freedom of
Information Law or forwarded the request to the records access officer.

Second, 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)].

Third, it is emphasized that the Freedom of Information Law pertains to existing
records, and that §89(3) states in part that an agency need not create a record in response to a
request. Insofar as the records of your interest no longer exist, the Freedom of Information
Law would not be applicable.

Next, with respect to rights of access, 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. Tax bills would, in my view, clearly be
accessible, for none of the grounds for denial would apply.

Moreover, 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. As early as 1951, it was held that the contents of a so-called "Kardex" system used
by assessors were available. The records determined to be available were described as
follows:

"Each card, approximately nine by seven inches (comprising
the Kardex System), contains many printed items for insertion
of the name of the owner, selling price of the property,
mortgage, if any, frontage, unit price, front foot value, details
as to the main building, including type, construction, exterior,
floors, heating, foundation, basement, roofing, interior finish,
lighting, in all, some eighty subdivisions, date when built or
remodeled, as well as details as to any minor buildings" [Sears
Roebuck & Co. v. Hoyt, supra, 758; see also Property
Valuation Analysts v. Williams, 164 AD 2d 131 (1990)].

Lastly, it is noted that assessment rolls and related documents have been found
judicially to be available to the public, whether they are maintained in paper or computer tape
format, and irrespective of the purpose for which a request is made.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, 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: Town Board
Town Clerk
Elizabeth Lawson, Assessor