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December 27, 2000

FOIL-AO-12421

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter of November 20, as well as the materials attached to it. I hope that
you will accept my apologies for the delay in response and that you will understand that, as a matter
of fairness, advisory opinions are prepared in the order in which requests for opinions are received.

By way of background, as the representative of COMPS, Inc., you requested from the Town
of Islip "a copy of the most current property assessment tax rolls with inventory on computer tape..."
You were informed that the records sought would not be made available unless you signed an
affidavit in which you asserted the records "are not being sought...and shall not be used for any
commercial/fund raising purpose." It is your view that the Town "has no basis to condition the
release of its tax roll on the signing of an affidavit restricting the use of same", and you have
requested an opinion on the matter.

In this regard, first, in your correspondence, you cited 5 USC §552 as the basis of your
request. That statute is the federal Freedom of Information Act, which applies only to federal
agencies. The statute that generally governs access to records of state and local government in New
York is the Freedom of Information Law, Public Officers Law, Article 6, §§84-90.

Second, it is my understanding that there is a distinction between an assessment roll and an
inventory, and that there may be a distinction in rights of access between the two kinds of records.
The former includes the names and addresses of owners of parcels of real property, an identification
number, reference to any exemptions, the assessed value of the parcel, the use code, and the like.
The latter is analogous to a property record card, for it indicates the features of improved property,
such as the square footage, number of rooms, etc.

Third, in brief, 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.

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].

In the case of a request for an assessment roll, §89(6)is pertinent, for that provision 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.

With respect to the inventory data, different provisions of the Real Property Tax Law offer
direction. As you are aware, §500 requires assessors to prepare an inventory of the real property
located within a city or town, and §501 states that the assessor shall publish and post notice
indicating that an inventory is available at certain times. As I understand that provision, the inventory
must be made available to any person for any reason when it is sought during the period specified
in the notice. At that time, as in the case of the assessment roll being available to the public pursuant
to a statute other than the Freedom of Information Law, the inventory would be available pursuant
to §501 of the Real Property Tax Law. Before or after that specified time, however, it appears that
the inventory would be subject to whatever rights exist under the Freedom of Information Law. If
that is so, in the context of your inquiry, it appears that the inventory could be withheld if it would
be used for a commercial or fund-raising purpose.

That is the conclusion, as I interpret the decision, that was reached in a case in which you
were involved, COMPS, Inc. v. Town of Huntington [703 NYS2d 225, 269 AD2d 446 (2000);
motion for leave to appeal denied, ___NY2D___, NYLJ, July 6, 2000]. The Court concluded that
the request was properly denied, for the record consisted of the equivalent of a list of names and
addresses that was intended to be used for a commercial purpose. That being so, the record was
appropriately withheld on the ground that disclosure would constitute an unwarranted invasion of
personal privacy. Further, the Court specified that "[b]ecause the respondents have not utilized the
inventory data for the purposes of any assessment or reassessment, they are not under any statutory
duty to publish the inventory data at this time" (id., 226; emphasis mine). Through the inclusion of
the phrase, at this time, it appears that the Court distinguished rights of access at the time the
inventory is required to be made available during the period specified in the notice required by §501
of the Real Property Tax Law from those rights extant at all other times. Based on the decision, it
appears that the inventory is available to any person for any reason during the time specified in the
notice, but that it may be withheld at other times if it would be used for a commercial or fund raising
purpose.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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