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May 31, 2001

FOIL-AO-12689

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

As you are aware, I have received your letter in which you sought an advisory opinion
concerning rights of access to "the results of a re-evaluation of the City of Glen Cove Property
Values." The records sought were apparently withheld on the ground that they consist of "work
product."

If I understand the situation correctly, the characterization of the records as "work product"
is irrelevant. Pertinent, however, is a judicial decision dealing with access to the kinds of records
in which you are interested. In this regard, I offer the following comments.

First, the Freedom of Information Law applies to 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 on the foregoing, materials characterized as "work product" prepared by or for the City would
constitute "records" that fall within the scope of the Freedom of Information Law.

Second, 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.
There is no exception dealing specifically with "work product."

Third, 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 and valuation data, different provisions of the Real Property
Tax Law offer direction. As you are likely 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,
inventory and valuation data 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 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

RJF:tt

cc: Assessor, City of Glen Cove