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 FOIL-AO-15108

January 7, 2005

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 have sought an advisory opinion concerning the propriety of Nassau County’s denial of your request made under the Freedom of Information Law.

The request involved "a computer copy of the data found in the Tax Impact Notices that is being mailed to the public..." The notices are sent to owners of real property pursuant to §511 of the Real Property Tax Law (RPTL). The County denied the request on the basis of §89(2)(b)(iii) of the Freedom of Information Law, citing COMPS, Inc. V. Town of Huntington, 269 AD2d 446, appeal denied, 95 NY2d 758 (2000) and Siegel, Fenchel & Peddy v. Central Pine Barrens Joint Planning and Policy Commission, 251 AD2d 670, 676 NYS2d 191; appeal denied, 93 NY2d 804 ( 1999). In addition to questioning the denial of that request, you also asked whether the County could deny "the same (but revised) request seeking only the tax id and new assessment fields of information (i.e., not the name and addresses)." You indicated that all of the data are available on the County’s website. Having gone to the website, that is so; however, data is only available after having entered a particular address; it is not available as a list or in the array.

In this regard, I offer the following comments.

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 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, supra.]

According to §511(1) of the RPTL, an assessor is required to "mail to each owner of real property...an assessment disclosure notice." As indicated above, those notices are accessible, individually, via the County’s website. There is no provision of which I am aware that requires that a list or database of assessment disclosure notices be compiled and made available as a single record. In contrast is an assessment roll, which is a single record that includes data relating to the assessment of all parcels of real property within an assessing unit and which is characterized as a "public record" in §516(2) of the RPTL. In the case of a request for an assessment roll, §89(6) of the Freedom of Information Law 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, §516 of the RPTL. 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.

In sum, because there is no statute that requires that all assessment disclosure notices be made available as a single record as in the case of an assessment roll, I believe that the County may properly consider §89(2)(b)(iii) of the Freedom of Information Law in determining rights of access. A database or equivalent containing the information sought in my view constitutes a list of names and addresses, and if it would be used for a commercial or fund-raising purpose, the County, in my opinion, has the authority to deny a request.

With respect to a request for the database without names and addresses, an initial issue involves the County’s ability to segregate those items from the remainder of the data. If it has the ability to do so with reasonable effort, I believe that it would be obliged to do so, assuming that the data is available under the Freedom of Information Law [see New York Public Interest Research Group v. Cohen, 729 NYS2d 379 (2001)].

Whether §89(2)(b)(iii) would be applicable as a basis for a denial of access in that circumstance is questionable. As you are aware, in Siegel, Fenchel & Peddy, supra, although names and addresses were deleted from a real property inventory, leaving tax map numbers potentially available, the Appellate Division concluded that disclosure of the tax map numbers "would still allow the petitioner to identify the names and addresses of the property owners listed thereon" and upheld the agency’s denial of access. Nevertheless, a distinction might be made between the facts in that case and your hypothetical request. In Siegel, Fenchel & Peddy, the request involved "the inventory of all privately-owned real property within the Central Pine Barrens Area" (id., 193), thereby focusing on relatively few parcels of real property among the thousands of parcels within Suffolk County. Your request, as I understand it, would not focus on any particular area; rather, it would encompass all parcels within the County. If that is so, it is conjectural whether Nassau County could justify a denial of access, absent names and addresses, based on a contention that disclosure would involve the functional equivalent of a list of names and addresses.

I hope that I have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director

RJF:tt

cc: Ruth Markovitz