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FOIL-AO-15407

August 2, 2005

E-MAIL

TO:

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, unless otherwise indicated.

Dear

As you are aware, I have received your letter and a variety of materials relating to it. Please accept my apologies for the delay in response.

You wrote that taxpayers "are at a disadvantage when it comes to looking at the data their home assessments are based on", because obtaining a copy of the Office of Real Property Services’ RPS4 "tax database" would cost more than $2600. "If it is a State database program, and it will fit on a disk", you asked why you should have to "pay any more than the price of the disk and the copy time costs."

In this regard, when RPS4 was being developed, representatives of the Office of Real Property Services (ORPS) questioned its status in relation to the Freedom of Information Law. By way of background, ORPS receives assessment data in electronic form from municipalities pursuant to §1590 of the Real Property Tax Law. The data has long been accessible to the public and is made available by municipalities and by ORPS on request. To make the data usable, a representative of ORPS wrote that:

"....staff proposes to copy this data into the data warehouse where it can be accessed by a new online web application. The application will allow the assessment community to access this information over the internet. Access will be restricted to assessors who will only be able to sign on if the agency has provided a valid usercode and password. The application will provide powerful features to run reports and select specific sets of data anywhere in the state. The original source of the data is still local governments, but we will be the primary owner of the application."

He asked whether I concur with his view that the application is "a delivery system" and not a "record" subject to the Freedom of Information Law.

I agreed, for I understand its function, the application is essentially a tool that enables assessors and others to use data; it is not data itself and, therefore, in my opinion, it could not be characterized as a "record" as that term is defined in §86(4) of the Freedom of Information Law. The application, like calculators or computers that provide individuals with the means to create or use data, but which are not themselves "records", would not in my opinion constitute a record for purposes of that statute.

I note that ORPS has indicated that it has never withheld requested data that it has the ability to generate by means of RPS4. In the future, rather than seeking the entirety of the data warehouse through the RPS4 delivery system, it is suggested that you request data relating to a particular parcel or parcels.

I hope that I have been of assistance.

RJF:tt

cc: Gregory Kidd