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FOIL-AO-14799

July 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 facts presented in your correspondence.

Dear

I have received your letter and the materials attached to it. You wrote that you represent a "tax certiorari company" and have requested an advisory opinion concerning a denial of access to records by the Town of Islip.

You requested "All property inventory records. Specifically, the property square footage, bathroom count and miscellaneous data thereon." The Town’s denial was based on a contention that "the release of the information would be an unwarranted invasion of personal privacy." You wrote that the request "is necessitated by evidentiary demands through the course of certiorari litigation", that "[t]he data, accordingly, is not sought for a commercial or fund raising purpose", and that the Town "does in fact disseminate such data pursuant to F.O.I.L. requests by taxpayers (or their agents) - but only upon single-individual requests." Significantly, although I found nothing to this effect in your communications with the Town, you indicated that you "specifically waived the need for the property owners names and addresses."

If indeed your request excludes property owners’ names and addresses, I believe that the Town would be obliged to disclose the data sought if it has the ability to do so with reasonable effort. On the other hand, if the request is intended to include names and addresses, it appears that the request could properly have been denied. 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.

One of the grounds for denial of access, §87(2)(b), authorizes an agency to withhold records or portions thereof when disclosure would constitute "an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article..." Section 89(2)(c)(i) indicates that disclosure "shall not be construed to constitute an unwarranted invasion of privacy....when identifying details are deleted." Again, if your request does not involve names and addresses, I do not believe that there would be a basis for a denial of access.

In that event, assuming that the Town maintains the data in electronic media, a potential issue involves its ability to segregate the names and addresses from the remainder of the data. Often information stored electronically can be extracted by means of keystrokes or queries entered on a keyboard. While some have contended that those kinds of minimal steps involve programming or reprogramming, and, therefore, creating a new record, which an agency is not required to do [see FOIL, §89(3)], so narrow a construction could tend to defeat the purposes of the Freedom of Information Law, particularly as information is increasingly being stored electronically. If electronic information can be extracted or generated with reasonable effort, judicial decisions suggest that an agency must do so.

Illustrative of that principle is a case in which an applicant sought a database in a particular format, and even though the agency had the ability to generate the information in that format, it refused to make the database available in the format requested and offered to make available a printout. Transferring the data from one electronic storage medium to another involved relatively little effort and cost; preparation of a printout, however, involved approximately a million pages and a cost of ten thousand dollars for paper alone. In holding that the agency was required to make the data available in the format requested and upon payment of the actual cost of reproduction, the Court in Brownstone Publishers, Inc. v. New York City Department of Buildings unanimously held that:

"Public Officers Law [section] 87(2) provides that, 'Each agency shall...make available for public inspection and copying all records...' Section 86(4) includes in its definition of 'record', computer tapes or discs. The policy underlying the FOIL is 'to insure maximum public access to government records' (Matter of Scott, Sardano & Pomerantz v. Records Access Officer, 65 N.Y.2d 294, 296-297, 491 N.Y.S.2d 289, 480 N.E.2d 1071). Under the circumstances presented herein, it is clear that both the statute and its underlying policy require that the DOB comply with Brownstone's reasonable request to have the information, presently maintained in computer language, transferred onto computer tapes" [166 Ad 2d, 294, 295 (1990)].

In another decision which cited Brownstone, it was held that: "[a]n agency which maintains in a computer format information sought by a F.O.I.L. request may be compelled to comply with the request to transfer information to computer disks or tape" (Samuel v. Mace, Supreme Court, Monroe County, December 11, 1992).

Perhaps most relevant is a decision concerning a request for records, data and reports maintained by the New York City Department of Health regarding "childhood blood-level screening levels" (New York Public Interest Research Group v. Cohen and the New York City Department of Health, Supreme Court, New York County, July 16, 2001; hereafter "NYPIRG"). The agency maintained much of the information in its "LeadQuest" database, and the principles enunciated in that decision may be applicable with respect to information maintained electronically in the context of your request.

In NYPIRG, the Court described the facts, in brief, as follows:

"...the request for information in electronic format was denied on the following grounds:

‘[S]uch records cannot be prepared in an electronic format with individual identifying information redacted, without the Department creating a unique computer program, which the Department is not required to prepare pursuant to Public Officer’s Law §89(3).’

"Instead, the agency agreed to print out the information at a cost of twenty-five cents per page, and redact the relevant confidential information by hand. Since the records consisted of approximately 50,000 pages, this would result in a charge to petitioner of $12,500."

It was conceded by an agency scientist that:

"...several months would be required to prepare a printed paper record with hand redaction of confidential information, while it would take only a few hours to program the computer to compile the same data. He also confirmed that computer redaction is less prone to error than manual redaction."

In consideration of the facts, the Court wrote that:

"The witnesses at the hearing established that DOH would only be performing queries within LeadQuest, utilizing existing programs and software. It is undisputed that providing the requested information in electronic format would save time, money, labor and other resources - maximizing the potential of the computer age.

"It makes little sense to implement computer systems that are faster and have massive capacity for storage, yet limit access to and dissemination of the material by emphasizing the physical format of a record. FOIL declares that the public is entitled to maximum access to public records [Fink v. Lefkowitz, 47 NY2d 567, 571 (1979)]. Denying petitioner’s request based on such little inconvenience to the agency would violate this policy."

Based on the foregoing, it was concluded that:

"To sustain respondents’ positions would mean that any time the computer is programmed to provide less than all the information stored therein, a new record would have been prepared. Here all that is involved is that DOH is being asked to provide less than all of the available information. I find that in providing such limited information DOH is providing data from records ‘possessed or maintained’ by it. There is no reason to differentiate between data redacted by a computer and data redacted manually insofar as whether or not the redacted information is a record ‘possessed or maintained’ by the agency.

"Moreover, rationality is lacking for a policy that denies a FOIL request for data in electronic form when to redact the confidential information would require only a few hours, whereas to perform the redaction manually would take weeks or months (depending on the number of employees engaged), and probably would not be as accurate as computer generated redactions."

If the Town has the ability to honor the request with reasonable effort, as in NYPIRG, that decision suggests that the Town would be required to do so. Whether the Town has the ability to do so with reasonable effort is unknown to me.

Second, if the request involves data that includes names and addresses, the analysis is different.

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)].

There are instances in which records may be available individually, but in which a request for a group of those records maintained within a list or its equivalent may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Section 89(2)(b)(iii) indicates that an unwarranted invasion of personal privacy includes the sale or release of a list of names and addresses when the list would be used for commercial or fund-raising purposes. In my view, that provision is intended to pertain to names of natural persons and their residences.

When records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

The only exception to the principles described above involves §89(2)(b)(iii), which represents what might be viewed as an internal conflict in the law. Although the status of an applicant and the purposes for which a request is made are irrelevant to rights of access, and an agency cannot ordinarily inquire as to the intended use of records, due to the language of §89(2)(b)(iii), rights of access to a list of names and addresses, or equivalent records, may be contingent upon the purpose for which a request is made [see Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162 (1983)].

In a case involving a list of names and addresses in which Suffolk County inquired as to the purpose for which the list was requested, it was found that an agency could make such an inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this office in which it was advised that an agency may appropriately require that an applicant for a list of names and addresses provide an assurance that a list of names and addresses will not be used for commercial or fund-raising purposes. In that decision, it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the record does it appear that petitioner intends to use the information sought for commercial or fund-raising purposes. However, the reason for that deficiency in the record is that all efforts by respondents to receive petitioner's assurance that the information sought would not be so used apparently were unsuccessful. Without that assurance the respondents could reasonably infer that petitioner did want to use the information for commercial or fund-raising purposes."

In addition, it was held that:

"[U]nder the circumstances, the Court finds that it was not unreasonable for respondents to require petitioner to submit a certification that the information sought would not be used for commercial purposes. Petitioner has failed to establish that the respondents denial or petitioner's request for information constituted an abuse of discretion as a matter of law, and the Court declines to substitute its judgement for that of the respondents" (id.).

A similar conclusion was reached in a more recent decision, [Siegel, Fenchel & Peddy, P.C. v. Central Pine Barrens Joint Planning & Policy Commission, 251 AD2d 670, 676 NYS 191, 193 (1998)].

With respect to inventory data, 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, 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, although your request may not involve a list per se, it has been held, in essence, that a request for records that would be used to develop a list of names and addresses to be used for a commercial purpose may be denied (see Scott, Sardano & Pomeranz, supra). That decision dealt with a request by a law firm for copies of motor vehicle accident reports to be used for the purpose of direct mail solicitation of accident victims. Although the Court of Appeals found that accident reports are individually available, in view of the intended use of the reports, to create a mailing list for a commercial purpose, i.e., to solicit accident victims, it was determined that names and addresses of accident victims could be withheld based on considerations of privacy. From my perspective, if your intended use of the data, for use in certiorari litigation, is similar to the intended use in Scott, Sardano & Pomeranz, and if the request includes names and addresses, it appears that the request could be denied under §89(2)(b)(iii) of the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Richard Hoffman