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FOIL-AO-15744

January 10, 2006

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

We are in receipt of your December 22, 2005 request for an advisory opinion concerning the Freedom of Information Law and its application to "comparable sheets" in the Town of Queensbury. Specifically, pursuant to resolution by the Town Board, you received the requested sheets, and now question "the form and content of [our] concurrence with [the] Town Counsel", adding that "Any references or opinion of record will also be helpful."

Initially, we note that it is rare to receive a request for an opinion from a person whose request has been fulfilled. More typically, advisory opinions are rendered at the request of persons whose requests have been denied by the municipality. Nevertheless, you have provided an opportunity to elaborate on the permissive nature of the Freedom of Information Law. In that regard, we offer the following comments.

First, the Freedom of Information Law is permissive; the Court of Appeals, the state’s highest court, has held that an agency may withhold records in accordance with the grounds for denial, but that it is not required to do so [Capital Newspapers v. Burns, 67 NY2d 562, 567 (1986)]. The only instance in which records must be withheld would involve the case in which a statute prohibits disclosure.

Second, and 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. 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 our view be withheld.

The "comparable sheets" 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, 180 Misc.2d, 693 NYS2d 870 (New York County, 1999); please note that this case was incorrectly cited in previous correspondence to Mr. Brothers].

In General Motors, the petitioner challenging its assessments, sought "descriptions of the comparables and any sales information including dates and terms of sale" contained in appraisals submitted to the Town by the consultant (id. at 871). The Town refused to disclose such records, taking the position that "the determination of an appraiser to use any particular sale as a comparable represents a professional decision which is part of the expert’s deliberative process in formulating his ultimate determination of value" (id. at 871-872). Based on that contention, the court held that the Town "need not disclose... that portion of the consultant’s appraisal which contains information concerning comparable properties used in determining the fair market value" [id. at 872 (emphasis added)].

While the Town could have chosen to withhold the records at issue, because the Freedom of Information Law is permissive, it apparently exercised its discretionary authority to grant access.

We hope this helps to clarify your understanding of the Freedom of Information Law.

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director
CSJD:jm
cc: Town Board