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FOIL-AO-13981

April 1, 2003

 

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 in which asked whether "work sheets provided to the Town of
Woodstock Assessor's Office by N.Y.S. Office of Real Property Services for an anticipated 2003
revaluation project would be subject to FOIL." You added that:

"The ORPS provided sheets (sample copy enclosed) show cost and
regression estimates, as well as median, mean and weighted adjusted
value estimates, and are used as a tool to estimate full market value
of a subject property. The sheets were taken out in the field,
reviewed, and a determination of value was made and written on the
sheets. However, the Town Board made a decision to abort the
revaluation project for this year, rendering any work that was done
null and void."

It is your view that "since the revaluation project was aborted and any work that was performed was
not finalized and will never be used, the sheets would not be subject to FOIL."

In this regard, I offer the following comments.

First, whether a project is ongoing, aborted or complete, all records maintained by or for the
Town fall within the coverage of the Freedom of Information Law. That statute pertains to agency
records, and §86(4) 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, insofar as the worksheets continue to exist and kept by or for the Town, I
believe that they constitute "records" subject to rights conferred by the Freedom of Information Law.

Second, 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.

From my perspective, in consideration of judicial decisions and an opinion issued by the
State Board of Real Property Services, the records in question may be withheld. Pertinent is
§87(2)(g), which authorizes an agency, such as a town, to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

The worksheets refer to particular parcels as the focus and those other parcels that an assessor
or consultant believes may be comparable in value. The selection of those other parcels essentially
represents the opinion of the evaluator (an assessor or appraiser), and in a decision involving a
request for records identifying "properties which he or she [an appraiser], subjectively, deems similar
enough to warrant analysis", the Appellate Division upheld the agency's denial of access [General
Motors Corporation v. Town of Massena, 262 AD2d 1074 (1999)]. Perhaps more analogous to the
issue that you raised is Gannett Satellite Information Network, Inc. v. City of Elmira, Supreme
Court, Chemung County, August 26, 1994), which involved a request for "the suggested revaluation
figure or property value estimate." The court sustained the denial of access, stating that:

"...such appraisal figures are the professional opinions of...appraisers
and are, therefore, not subject to disclosure....Such opinions are
subjective, non-final and were prepared to assist the Assessor in her
deliberative process. Although the suggested valuation figures... are
expressed in numerical form, they are still professional opinions as to
value and cannot be said to amount to simple statistical or factual
tabulations."

Similarly, in 10 Op. Counsel SBRPS No.4 (rev.), it was advised by the State Board that "[o]pinion
data (e.g., a preliminary estimate of value made by an assessor or revaluation contractor) is not
accessible..." until it is no longer preliminary.

Lastly, I point out that the Freedom of Information Law is permissive. While an agency may
withhold records or portions or records in accordance with the grounds for denial, it is not required
to do so. Therefore, even though it appears that the records in question may be withheld, the Town
may choose to disclose them.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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