March 10, 2005
TO: John F. Murphy
FROM: Robert J. Freeman, Executive Director
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 Mr. Murphy:
As you are aware, I have received a variety of material from you concerning your attempts to obtain real property transfer forms from the City of Yonkers. The correspondence indicates that a provision of the Yonkers City Code, according to the City’s Freedom of Information Officer, "makes the release of such forms or the information they contain a misdemeanor and imposes a fine of up to one thousand dollars for violation of this section."
From my perspective, due a change in the law, real property transfer forms must be disclosed. Consequently, I do not believe that the provision of the City Code requiring that those records be confidential is valid or enforceable. 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. The first ground for denial of access, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." For several years, §574(5) of the Real Property Tax Law stated that:
"Forms or reports filed pursuant to this section or section three hundred thirty-three of the real property law shall not be made available for public inspection of copying except for purposes of administrative or judicial review of assessments in accordance with rules promulgated by the state board."
The forms referenced in §574(5) are usually "EA 5217" forms, the real property transfer forms that include the price of a parcel when real property is sold. When §574(5) as quoted earlier was in effect, I agreed that real property tax forms were exempt from disclosure, unless they were sought for the purpose of administrative or judicial review of assessments.
However, §574(5) was amended in 1993, and since the effective date of the amendment, July 1, 1994, it has required that:
"Forms or reports filed pursuant to this section or section three hundred thirty-three of the real property law shall be made available for public inspection or copying in accordance with rules promulgated by the state board."
Based on the foregoing, the forms or reports indicating transfers of real property that had been exempt from disclosure to the public have been accessible to the public since July of 1994.
Second, it has been held by several courts, including the Court of Appeals, the state’s highest court, that a state agency's regulations or the provisions of a local enactment, such as a city code, local law, charter or ordinance, for example, do not constitute a "statute" [see e.g., Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 Ad 2d 965, reversed 55 NY 2d 1026 (1982); Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. For purposes of the Freedom of Information Law, a statute would be an enactment of the State Legislature or Congress. Therefore, a local enactment cannot confer, require or promise confidentiality. That being so, I do not believe that the provision of the City Code referenced earlier can require that records be kept confidential when a state statute requires that the same records be accessible to the public.
In an effort to enhance understanding of the matter, a copy of this response will be forwarded to the City of Yonkers Freedom of Information Officer.
I hope that I have been of assistance.
cc: Kevin Crozier