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February 5, 1993

 

 

Mr. Arnis Zilgme, Esq.
Town Attorney, Town of Colonie
Memorial Town Hall
P.O. Box 508
Newtonville, N.Y. 12128

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. Zilgme:

I appreciate receiving a copy of your determination of an
appeal rendered on January 22 under the Freedom of Information Law
concerning a request for assessment records.

The record sought, an "RPS Assessment File", was denied
because it contains information derived form real property transfer
reports, and on the ground that the records "contain lists of names
and addresses which would be used by the applicant for commercial
purposes" and, therefore, may be withheld as an unwarranted
invasion of personal privacy. While I agree with your
determination insofar as it pertains to real property transfer
data, 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 section 87(2)(a) through (i) of the Law.

As you may be aware, §574(5) of the Real Property Tax Law
states 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 above are usually "EA 5217" forms, which
include the selling price of a parcel when real property is
transferred.

To give effect to §574(5) of the Real Property Tax Law, I
believe that information derived from EA 5217 forms that is
transferred to other records should be considered confidential to
the same extent as that statute confers confidentiality with
respect to the forms [see Property Valuation Analysts v. Williams,
164 Ad 2d 131 (1990)]. Any different result would, in my opinion,
essentially nullify the direction given by §574(5). Further, the
Freedom of Information Law, §87(2)(a), pertains to records that
"are specifically exempted from disclosure by state or federal
statute". In this instance, section 574(5) of the Real Property
Tax Law, a statute, would exempt the form or reports from
disclosure, except as otherwise provided.

Second, the Freedom of Information Law pertains to existing
records. Section 89(3) of the Law states in part that an agency
need not create a record in response to a request. It is
emphasized, however, that §86(4) of the Freedom of Information Law
defines the term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the language quoted above, if information is maintained
in some physical form, it would in my opinion constitute a "record"
subject to rights of access conferred by the Law. Further, the
definition of "record" includes specific reference to computer
tapes and discs, and it was held more than ten years ago that
"[i]nformation is increasingly being stored in computers and access
to such data should not be restricted merely because it is not in
printed form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd
97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558
(1981)].

When information is maintained electronically, in a computer,
for example, it has been advised that if the information sought is
available under the Freedom of Information Law and may be retrieved
by means of existing computer programs, an agency is required to
disclose the information. In that kind of situation, the agency in
my view would merely be retrieving data that it has the capacity to
retrieve. Disclosure may be accomplished either by printing out
the data on paper or perhaps by duplicating the data on another
storage mechanism, such as a computer tape or disk. On the other
hand, if information sought can be retrieved from a computer or
other storage medium only by means of new programming or the
alteration of existing programs, those steps would, in my opinion,
be the equivalent of creating a new record. As stated earlier,
since section 89(3) does not require an agency to create a record,
I do not believe that an agency would be required to reprogram or
develop new programs to retrieve information that would otherwise
be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218
(1991)].

If, for instance, transfer data appears on the same tape or
disc as other assessment data that would be public, I believe that
the Town would be obliged to disclose the available data, if it has
the capacity to do so based upon its existing computer programs.
If it is unable to do so, a tape containing both kinds of
information could in my view be withheld. Alternatively, the data
could be printed out, and the confidential portions could be
deleted manually.

Third, it has been held that assessment rolls, whether kept on
paper or electronically, are accessible, irrespective of their
intended use.

With respect to the privacy provisions of the Freedom of
Information Law, §87(2)(b) permits an agency to withhold records to
the extent that disclosure would constitute "an unwarranted
invasion of personal privacy". Section 89(2)(b) describes a series
of unwarranted invasions of personal privacy, including
subparagraph (iii), which pertains to:

"sale or release of lists of names and
addresses if such lists would be used for
commercial or fund-raising purposes. .. "

Therefore, if a list of names and addresses is requested for
commercial or fund-raising purposes, an agency may, under most
circumstances, withhold such a list. Nevertheless, in a decision
rendered more than ten years ago, the issue was whether county
assessment rolls were accessible under the Freedom of Information
Law in computer tape format. In holding that they are, the court
found that assessment rolls or equivalent records are public
records and were public before the enactment of the Freedom of
Information Law. Specifically, in Szikszay v. Buelow [436 NYS 2d
558 (1981)], it was found that:

"An assessment roll is a public record (Real
Property Tax Law [section] 516 subd. 2;
General Municipal Law [section] 51; County Law
[section] 208 subd. 4). It must contain the
name and mailing or billing address of the
owner of the parcel (Real Property Tax Law
[sections] 502, 504, 9 NYCRR [section]
190-1(6)(1)). Such records are open to public
inspection and copying except as otherwise
provided by law (General Municipal Law
[section] 51; County Law [section] 208 subd.
4). Even prior to the enactment of the Freedom
of Information Law, and under its predecessor,
Public Officers Law [section] 66, repealed
L.1974, c. 578, assessment rolls and related
records were treated as public records, open
to public inspection and copying (Sanchez v.
Papontas, 32 A.D.2d 948, 303 N.Y.S.2d 711,
Sears Roebuck & Co. v. Hoyt, 202 Misc. 43, 107
N.Y.S.2d 756; Ops. State Comptroller 1967, p.
596)" (id. at 562, 563).

Further, in discussing the issue of privacy and citing the
provision dealing with lists of names and addresses, it was held
that:

"The Freedom of Information Law limits access
to records where disclosure would constitute
'an unwarranted invasion of personal privacy'
(Public Officers Law [section] 87 subd. 2(b),
[section] 89 subd. 2(b)iii). In view of the
history of public access to assessment
records, and the continued availability of
such records to public inspection, whatever
invasion of privacy may result by providing
copies of A.R.L.M. computer tapes to
petitioner would appear to be permissible
rather than 'unwarranted' (cf. Advisory Opns.
of Committee on Public Access to Records, June
12, 1979, FOIL-AO-1164). In addition,
considering the legislative purpose behind the
Freedom of Information Law, it would be
anomalous to permit the statute to be used as
a shield by government to prevent disclosure.
In this regard, Public Officers Law [section]
89 subd. 5 specifically provides: 'Nothing in
this article shall be construed to limit or
abridge any otherwise available right of
access at law or in equity of any party to
records.'" [id. at 563; now section 89(6)].

The court stated further that:

"...the records in question can be viewed by
any person and presumably copies of portions
obtained, simply by walking into the
appropriate county, city, or town office. It
appears that petitioner could obtain the
information he seeks if he wanted to spend the
time to go through the records manually and
copy the necessary information. Therefore,
the balancing of interests, otherwise
required, between the right of individual
privacy on the one hand and the public
interest in dissemination of information on
the other...need not be undertaken...

"Assessment records are public information
pursuant to other provisions of law and have
been for sometime. The form of the records
and petitioner' s purpose in seeking them do
not alter their public character or
petitioner's concomitant right to inspect and
copy" (id.).

Based upon the foregoing, I believe that an assessment roll or its
equivalent should be disclosed, unless it contains confidential
data in conjunction with the conditions described earlier that
would restrict access.

If you would like to discuss the matter, please feel free to
contact me. I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Rosemary Roberts