September 28, 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.
We are in receipt of your August 24, 2005 request for an advisory opinion pertaining to the application of the Freedom of Information Law to the accessibility of "comparables sheets" relevant to individual properties subject to revaluation by the Town of Queensbury. You wrote that "comparables sheets offer valuable information such as 4 properties a given property in the town is compared to", to value them for assessment purposes. In response to your request the Town provided you a copy of the comparables used to value your own property but refused to provide others.
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.
From my perspective, in consideration of judicial decisions and an opinion issued by the State Office of Real Property Services, the records in question may be withheld. Pertinent is §87(2)(g), which authorizes an agency, such as a town, to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
The worksheets that you describe refer to particular parcels as the focus and those other parcels that an assessor or consultant believes may be comparable in value. The selection of those other parcels essentially represents the opinion of the evaluator (an assessor or appraiser), and in a decision involving a request for records identifying "properties which he or she [an appraiser], subjectively, deems similar enough to warrant analysis", the Appellate Division upheld the agency’s denial of access [General Motors Corporation v. Town of Massena, 262 AD2d 1074 (1999)]. Analogous to the issue that you raised is Gannett Satellite Information Network, Inc. v. City of Elmira, Supreme Court, Chemung County, August 26, 1994), which involved a request for "the suggested revaluation figure or property value estimate." The court sustained the denial of access, stating that:
"...such appraisal figures are the professional opinions of...appraisers and are, therefore, not subject to disclosure....Such opinions are subjective, non-final and were prepared to assist the Assessor in her deliberative process. Although the suggested valuation figures... are expressed in numerical form, they are still professional opinions as to value and cannot be said to amount to simple statistical or factual tabulations."
Similarly, in 10 Op. Counsel SBRPS No.4 (rev.), it was advised by the State Board that "[o]pinion data (e.g., a preliminary estimate of value made by an assessor or revaluation contractor) is not accessible..." until it is no longer preliminary.
I trust this meets with your request. Should you have any further questions, please contact me directly.
Camille S. Jobin-Davis