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June 25, 2001

FOIL-AO-12754

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 and the correspondence attached to it. You complained that "[t]he
County of Oneida and City of Utica Governments refuse to allow the general public to view Tax
Rolls for real property situated in their districts." You also indicated that Seneca County officials
"refuse to have anyone review recorded public records during the process of entering the data into
the computer system", and that the "date entered into their computer is the day the instrument was
recorded, not the day it was entered for public viewing." Consequently, "[t]his leaves a gap for any
instrument recorded or filed", and "[c]ertain projects do reflect missed documents and one may
become a claim from a $76,000 judgment left out of a report."

In this regard, I offer the following comments.

First, it is noted at the outset that §86(4) of the Freedom of Information Law 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 by an
agency, it would in my opinion constitute a "record" subject to rights of access conferred by the Law.

Therefore, in the context of the situation that you described in Seneca County, as soon as
documentation is produced by or comes into the possession of the County, I believe that it constitutes
a "record" that falls within the scope of the Freedom of Information Law.

Second, when records are available under the Freedom of Information Law, they are available
for inspection and copying. Consequently, if the records sought that are maintained by Oneida
County and City of Utica can physically be inspected, I believe that the public has the right to do so.
Further, the only fee that may be charged under the Freedom of Information Law involves the
reproduction of records [see §87(1)(b)(iii)]; no fee may be assessed for a search of records or
personnel time, for example (see regulations promulgated by the Committee on Open Government,
21 NYCRR Part 1401).

Third, 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..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge
the receipt of a request within five business days of receipt of a request. When an acknowledgement
is given, it must include an approximate date indicating when it can be anticipated that a request will
be granted or denied. The acknowledgement by the records access officer did not make reference
to such a date.

I note that there is no precise time period within which an agency must grant or deny access
to records. The time needed to do so may be dependent upon the volume of a request, the use of the
records by the agency, the possibility that other requests have been made, the necessity to conduct
legal research, the search and retrieval techniques used to locate the records and the like. In short,
when an agency acknowledges the receipt of a request because more than five business days may be
needed to grant or deny a request, so long as it provides an approximate date indicating when the
request will be granted or denied, and that date is reasonable in view of the attendant circumstances,
I believe that the agency would be acting in compliance with law. Notwithstanding the foregoing,
in my view, every law must be implemented in a manner that gives reasonable effect to its intent,
and I point out that in its statement of legislative intent, §84 of the Freedom of Information Law
states that "it is incumbent upon the state and its localities to extend public accountability wherever
and whenever feasible." Therefore, if records are clearly available to the public under the Freedom
of Information Law, and if they are readily retrievable, there may be no basis for a lengthy delay in
disclosure.

When records are being used by agency staff, I believe that an agency may delay disclosure.
However, when they are no longer in use, there would be no valid reason for continuing such delay.

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)].

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.

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).
Further, as you may be aware, 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. One of the grounds for denial in the
Freedom of Information Law, §87(2)(b), permits an agency to withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal privacy". Section 89(2)(b)
describes a series of unwarranted invasions of personal privacy, including subparagraph (iii), which
pertains to:

"sale or release of lists of names and addresses if such lists would be
used for commercial or fund-raising purposes. .. "

Therefore, if a list of names and addresses is requested for commercial or fund-raising purposes, an
agency may, under most circumstances, withhold such a list. Nevertheless, in a decision rendered
more than ten years ago, the issue was whether county assessment rolls were accessible under the
Freedom of Information Law in computer tape format. In holding that they are, the court found that
assessment rolls or equivalent records are public records and were public before the enactment of
the Freedom of Information Law. Specifically, in Szikszay v. Buelow [436 NYS 2d 558 (1981)],
it was found that:

"An assessment roll is a public record (Real Property Tax Law
[section] 516 subd. 2; General Municipal Law [section] 51; County
Law [section] 208 subd. 4). It must contain the name and mailing or
billing address of the owner of the parcel (Real Property Tax Law
[sections] 502, 504, 9 NYCRR [section] 190-1(6)(1)). Such records
are open to public inspection and copying except as otherwise
provided by law (General Municipal Law [section] 51; County Law
[section] 208 subd. 4). Even prior to the enactment of the Freedom
of Information Law, and under its predecessor, Public Officers Law
[section] 66, repealed L.1974, c. 578, assessment rolls and related
records were treated as public records, open to public inspection and
copying (Sanchez v. Papontas, 32 A.D.2d 948, 303 N.Y.S.2d 711,
Sears Roebuck & Co. v. Hoyt, 202 Misc. 43, 107 N.Y.S.2d 756; Ops.
State Comptroller 1967, p. 596)" (id. at 562, 563).

In discussing the issue of privacy and citing the provision dealing with lists of names and
addresses, it was held that:

"The Freedom of Information Law limits access to records where
disclosure would constitute 'an unwarranted invasion of personal
privacy' (Public Officers Law [section] 87 subd. 2(b), [section] 89
subd. 2(b)iii). In view of the history of public access to assessment
records, and the continued availability of such records to public
inspection, whatever invasion of privacy may result by providing
copies of A.R.L.M. computer tapes to petitioner would appear to be
permissible rather than 'unwarranted' (cf. Advisory Opns. of
Committee on Public Access to Records, June 12, 1979,
FOIL-AO-1164). In addition, considering the legislative purpose
behind the Freedom of Information Law, it would be anomalous to
permit the statute to be used as a shield by government to prevent
disclosure. In this regard, Public Officers Law [section] 89 subd. 5
specifically provides: 'Nothing in this article shall be construed to
limit or abridge any otherwise available right of access at law or in
equity of any party to records.'" [id. at 563; now section 89(6)].

The court stated further that:

"...the records in question can be viewed by any person and
presumably copies of portions obtained, simply by walking into the
appropriate county, city, or town office. It appears that petitioner
could obtain the information he seeks if he wanted to spend the time
to go through the records manually and copy the necessary
information. Therefore, the balancing of interests, otherwise
required, between the right of individual privacy on the one hand and
the public interest in dissemination of information on the other...need
not be undertaken...

"Assessment records are public information pursuant to other
provisions of law and have been for sometime. The form of the
records and petitioner' s purpose in seeking them do not alter their
public character or petitioner's concomitant right to inspect and copy"
(id.).

Based upon the foregoing, I believe that an assessment roll or its equivalent must be disclosed. I
point out that the same conclusion was reached by Supreme Court in Nassau County in an unreported
decision [Real Estate Data, Inc. v. County of Nassau, Supreme Court, Nassau County, September
18, 1981].

With respect to EA-5217 forms that indicate the transfer price of real property, under §574(5)
of the Real Property Tax Law, the transfer price had been confidential unless it had been requested
in conjunction with the administrative or judicial review of an assessment. However, those forms,
due to an amendment, have been available since July 1, 1994.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. James S. Alesi, Member of the Senate
Oneida County Attorney
Seneca County Attorney
Corporation Counsel, City of Utica