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FOIL-AO-14463

January 13, 2004

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, unless otherwise indicated.

Dear

I have received your letter of December 18, as well as the materials attached to it. You have sought an advisory opinion concerning a partial denial of your request for records by the Town of Islip. Although the portion of the request involving the Town’s assessment roll was granted, the Town denied access to the property inventory on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Since the receipt of your letter, I also received a copy of a determination of your appeal rendered by Richard Hoffman, Deputy Town Attorney.

While you are familiar with the opinion offered previously by this office, the following remarks will essentially reiterate advice and commentary offered in the past. That will be so, for copies of this response will be forwarded to Mr. Hoffman.

By way of background, 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 that statute, 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, 269 NY2D 446 (2000); motion for leave to appeal denied, 95 NY2d 758 (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.

Lastly, as I understand his determination, Mr. Hoffman suggested that the inventory has never been published and that, therefore, the request may be denied. If that is his contention, I respectfully disagree. The Court in COMPS, supra, indicated in the context of the facts of that case that a town was "not under any statutory duty to publish the inventory data at this time." To reiterate, §501 of the Real Property Tax Law requires the publication of a notice during a particular period stating that an appointment may be made to review the data. However, the Court also found that the inventory constitutes a "record" subject to whatever rights may exist under the Freedom of Information Law. That being so, I believe that rights of access to the inventory, as a record, are determined by the Freedom of Information Law at all times that it exists during the time other than that specified in the notice published pursuant to §501.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Richard Hoffman