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FOIL-AO-13788

December 26, 2002

 

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 prepared in your capacity as attorney for the West Irondequoit
Central School District.

You wrote that the District has in previous years obtained records from the Irondequoit Town
Assessor's office indicating the "names, tax account numbers, reported income, assessed valuation
and senior citizen tax exemptions of its residents." This year, however, the District "has refused to
provide the income information reported by each senior citizen on their real property tax exemption
form." The District, according to your letter, "uses this information to report to the Board of
Education so that they can determine the number of residents who would be affected if the income
eligibility level was changed, and the real property tax income affect to the District."

From my perspective, if the Freedom of Information Law serves as the basis for determining
whether or the extent to which the data should be disclosed, the Town's response may be accurate.
However, I do not believe that such a position should bar the District from acquiring the information
it needs to carry out its governmental duties. In this regard, I offer the following comments.

First, as a general matter, 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).

I note, too, 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)].

Second, I believe that certain records used in determining assessments may be withheld. For
instance, for senior citizens to apply for STAR exemptions, they must submit records that include
personal financial details. Having discussed the issue with representatives of the Office of the Office
of Real Property Services, we agree that income tax forms or other personal financial information
submitted by senior citizens seeking STAR exemptions may be withheld from the public. Although
the Freedom of Information Law is based upon a presumption of access, §87(2)(b) authorizes an
agency to withhold records insofar as disclosure would result in "an unwarranted invasion of
personal privacy." The New York State Tax Law contains provisions that require that confidentiality
of records reflective of the particulars of a person's income or payment of taxes (see e.g., §697, Tax
Law). As such, it would appear that the Legislature felt that disclosure of records concerning
taxpayers' income would constitute an improper or "unwarranted" invasion of personal privacy.

In short, I believe that an agency, such as the Town, has the authority to withhold portions
of records that include intimate or sensitive details of their lives, i.e., their incomes.

Nevertheless, if the District's interest is in ascertaining the number of residents who may be
affected by a change in income eligibility, the names and addresses of residents may be irrelevant.
If that is so, portions of the records indicating income, valuation and the percentage of an exemption
would be accessible, following the deletion of personally identifiable information, such as names and
parcel ID numbers or addresses.

Lastly, the Freedom of Information Law is permissive, and the Court of Appeals has held that
an agency may withhold records or portions thereof in accordance with the grounds for denial, but
that it is not required to do so and has discretionary authority to disclose [see Capital Newspapers
v. Burns, 67 NY2d 562, 567 (1986)]. In similar circumstances, when it is clear that a government
agency is seeking records in the performance of its official duties, not as a member of the public, it
has been suggested that, in the spirit of governmental cooperation, the agency in possession of the
records may choose to disclose records or details within records that ordinarily would be withheld
from the public.

In an effort to encourage Town officials to cooperate with the District, copies of this response
will be forwarded to them.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Linda Dzus, Town Clerk
Town Assessor