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July 27, 1993

 

 

Hon. Thomas G. Clingan
County Clerk
Office of the Albany County Clerk
Albany County Court House
Albany, N.Y. 12207

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. Clingan:

I have received your letter of July 19, as well as the
materials attached to it.

You have sought an advisory opinion concerning a request by a
firm "that sells information on tax maps and related indices." The
firm has in the past obtained microfilm copies of Albany County's
tax maps, and your inquiry involves a recent request for a copy of
"the computer tape of the tax mapping program's ownership listing."
In view of the firm's intent to resell the data, the Director of
Real Property Tax Services has contended that the request should be
denied on the ground that disclosure would constitute "an
unwarranted invasion of personal privacy"; the First Assistant
County Attorney, however, has advised that the data must be
disclosed. It is noted that in her discussion of the issue, she
pointed out that the "tax maps indicate by section, block and lot
number real properties in the County," and that "[s]upplemental
information regarding ownership data is also maintained, but
separate from the map itself." Additionally, she stressed that
ownership information, which does not appear in the data sought,
"is readily available not only in each Assessor's office but also
from the State and/or your office" (the Office of the Director of
the Real Property Tax Service Agency).

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 section 87(2)(a) through (i) of the Law.

Second, with respect to the protection of personal privacy, as
indicated earlier, §87(2)(b) of the Freedom of Information Law
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. In this instance, the
requested data does not include names and addresses. Consequently,
I do not believe that the provisions concerning the protection of
privacy, or any other ground for denial, could justifiably be
asserted to withhold the computer tape in question. Moreover, more
than a decade ago, it was held that a request for a county's tax
maps must be granted, even though the applicant sought to use the
maps for a commercial purpose [Szikszay v. Buelow, 436 NYS 2d 558
(1981)]. In the same case, another 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. Therefore, even if the data requested included
the names and addresses of owners of real property, it would be
accessible. Specifically, the court in Szikszay 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. I point out that the same
conclusion was reached by Supreme Court in Nassau County in an
unreported decision [Real Estate Data, Inc. v. County of Nassau,
Supreme Court, Nassau County, September 18, 1981].

In short, both tax maps and computer tapes of assessment rolls
have been found to be available, notwithstanding the fact that they
may be requested for a commercial purpose.

Lastly, with respect to fees, §87(1)(b)(ii) of the Freedom of
Information Law states in part that for reproducing records that
cannot be photocopied (i.e., computer tapes), an agency may charge
a fee based on the actual cost of reproduction. However, as you
are aware, legislation has been prepared by the Committee on Open
Government and introduced at the request of the Governor to enable
agencies to establish fees based upon the commercial utility of
records in certain circumstances, one of which would include the
kinds of records at issue. Although the legislation has not been
approved, I believe that interest is significant and that the bill,
or something similar to it, will be enacted in the not too distant
future.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: John Lynch
Christine Marbach Kellett