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October 4, 2001

FOIL-AO-12987

 

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

As you are aware, I have received your letter of September 2 in which you described a series
of difficulties in your attempts to gain access to records relating to real property tax assessments in
the City of Mount Vernon and raised questions concerning the matter.

In this regard, I offer the following comments.

First, 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 [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. 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)].

You questioned the extent of an appeals officer's jurisdiction when there was no response
to an initial request. In my view, the failure to respond initially has no impact on the scope of the
appeals officer's determination. In the decision cited above, Floyd, there was no response to an
appeal. That being so, the petitioner contended that none of the grounds for denial of access
appearing in §87(2) of the Freedom of Information Law could be asserted in a judicial proceeding.
The Appellate Division, however, disagreed. In short, I do not believe that the appeals officer is
bound by the reasons offered in an initial denial of access or the absence thereof.

Second, you asked whether the facts that you presented "are sufficient to support an award
of attorney fees..." Under §89(4)(c) of the Freedom of Information Law, certain conditions must be
met before a court can assert its discretionary authority to award attorney's fees. Even if each of
those conditions is met, there is no guarantee that a court would make such an award. As such, I
cannot conjecture as to the likelihood that an award would be granted.

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).
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)].

I note that the reasons for which a request is made and an applicant's potential use of records
are generally 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 inventory data, different provisions of the Real Property Tax Law offer
direction. Section 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, 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:jm
cc: Hina Sherwani