August 3, 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, unless otherwise indicated.
I have received your letter in which you sought a "determination" concerning a request made under the Freedom of Information Law to the Assessor of the Town of Rye, Mr. Mitchell Markowitz.
You requested a database and log file that include assessment and inventory data and wrote that "[t]hese are to be provided in a digital format as required by New York State Law." You indicated, however, that Mr. Markowitz informed you, in your words, that "the information was proprietary and unavailable."
Having discussed the matter with an attorney at the Office of Real Property Services ("ORPS"), Mr. Stephen Harrison, neither your contention nor that of Mr. Markowitz appears to be fully accurate. In this regard, I offer the following comments.
First, it is noted that this office is not empowered to render what may be characterized as a "determination" that is binding. The Committee on Open Government and its staff are authorized to provide advice and opinions, and the content of this response should be considered advisory.
Second, the contents of an assessment roll and an inventory have historically been accessible to the public in great measure, pursuant to provisions of the Real Property Tax Law. That being so, I disagree with Mr. Markowitz’ contention that the information is "proprietary or unavailable." I note, however, that the records in question likely include items that may be withheld. For instance, when senior citizens seek exemptions, they may be required to file income tax records that may be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)]; business entities may file income and expense statements that might be deniable in part on the ground that disclosure would "cause substantial injury" to their "competitive position" [see §87(2)(d). In consideration of those possibilities, ORPS has developed a "foilable version" of the records at issue that can be "scrubbed" by municipalities, so that information that may properly be withheld can be segregated from the remainder.
Mr. Harrison indicated that an assessor has the ability using ORPS’ program to make the public data accessible after having removed the data that need not be disclosed. He informed me that if Mr. Markowitz has questions or needs guidance in making accessible data available, he can be contacted by Mr. Markowitz at (518)474-8821.
Lastly, although the courts have held that an agency is required to make records available in the storage medium of an applicant’s choice when it has the ability to do so [see e.g., Brownstone Publishers v. NYC Dept. of Buildings, 550 NYS2d 564, aff;d 166 AD2d 294 (1990) and NYPIRG v. Cohen, 729 NYS2d 379; 188 Misc.2d 658 (2001)], I know of no statute that specifies support for your contention that the records at issue must "be provided in a digital format."
In an effort to enhance compliance with and understanding of applicable law, a copy of this response will be sent to Mr. Markowitz.
I hope that I have been of assistance.
Robert J. Freeman
cc: Mitchell Markowitz