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December 21, 1993

 

 

Mr. Gerald E. Gordinier
Village of Voorheesville
PO Box 367
Voorheesville, NY 12186

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. Gordinier:

I have received your letter in which you sought an advisory
opinion concerning the Freedom of Information Law.

You wrote that you perform the duties of code enforcement
officer, zoning officer, fire inspector and assessor for the
Village of Voorheesville Board of Trustees, and that you maintain
records concerning all of those functions in your office. Having
recently purchased a computer, you wrote that you are in the
process of transferring the contents of your records onto discs.
Your question is whether "the Village has to provide total
disclosure of [its] property and departmental records".

In this regard, I offer the following comments, both general
and in relation to particular records to which you referred.

First, it is emphasized 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)].

In one decision, Brownstone Publishers Inc. v. New York City
Department of Buildings, the question involved an agency's
obligation to transfer electronic information from one electronic
storage medium to another when it had the technical capacity to do
so and when the applicant was willing to pay the actual cost of the
transfer. As stated by the Appellate Division, First Department:

"The files are maintained in a computer format
that Brownstone can employ directly into its
system, which can be reproduced on computer
tapes at minimal cost in a few hours time-a
cost Brownstone agreed to assume (see, POL
[section] 87[1] [b] [iii]). The DOB,
apparently intending to discourage this and
similar requests, agreed to provide the
information only in hard copy, i.e., printed
out on over a million sheets of paper, at a
cost of $10,000 for the paper alone, which
would take five or six weeks to complete.
Brownstone would then have to reconvert the
data into computer-usable form at a cost of
hundreds of thousands of dollars.

"Public Officers Law [section] 87(2) provides
that, 'Each agency shall...make available for
public inspection and copying all records...'
Section 86(4) includes in its definition of
'record', computer tapes or discs. The policy
underlying the FOIL is 'to insure maximum
public access to government records' (Matter
of Scott, Sardano & Pomerantz v. Records
Access Officer, 65 N.Y.2d 294, 296-297, 491
N.Y.S.2d 289, 480 N.E.2d 1071). Under the
circumstances presented herein, it is clear
that both the statute and its underlying
policy require that the DOB comply with
Brownstone's reasonable request to have the
information, presently maintained in computer
language, transferred onto computer tapes"
[166 Ad 2d, 294, 295 (1990)].

Further, in a more recent decision that cited Brownstone, it was
held that: "[a]n agency which maintains in a computer format
information sought by a F.O.I.L. request may be compelled to comply
with the request to transfer information to computer disks or tape"
(Samuel v. Mace, Supreme Court, Monroe County, December 11, 1992).

Second, with respect to rights of access, 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.

Long before the enactment of the Freedom of Information Law,
it was established by the courts that records pertaining to the
assessment of real property are generally available [see e.g.,
Sears Roebuck & Co. v. Hoyt, 107 NYS 2d 756 (1951); Sanchez v.
Papontas, 32 AD 2d 948 (1969).

Index cards containing a variety of information concerning
specific parcels of real property have long been accessible to the
public. As early as 1951, it was held that the contents of a so-called "Kardex" system used by assessors were available. The
records determined to be available were described as follows:

"Each card, approximately nine by seven inches
(comprising the Kardex System), contains many
printed items for insertion of the name of the
owner, selling price of the property,
mortgage, if any, frontage, unit price, front
foot value, details as to the main building,
including type, construction, exterior,
floors, heating, foundation, basement,
roofing, interior finish, lighting, in all,
some eighty subdivisions, date when built or
remodeled, as well as details as to any minor
buildings" [Sears Roebuck & Co. v. Hoyt,
supra, 758; see also Property Valuation
Analysts v. Williams, 164 AD 2d 131 (1990)].

Insofar as the records in which you are interested are essentially
the equivalent of those described above, I believe that they must
be disclosed.

Further, it is noted that assessment rolls and related
documents have been found judicially to be available to the public,
whether they are maintained in paper or computer tape format, and
irrespective of the purpose for which a request is made. One of
the grounds for denial in 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 must 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].

With respect to EA-5217 forms that indicate the transfer price
of real property, currently, under §574(5) of the Real Property Tax
Law, the transfer price is confidential unless it is requested in
conjunction with the administrative or judicial review of an
assessment. However, those forms, due to a recent amendment, will
become available effective July 1, 1994.

Third, I point out that it had been claimed in the past that
building code inspection records could be withheld on the ground
that they involved investigatory files compiled for law enforcement
purposes. Nevertheless, in one of the first decisions rendered
under the Freedom of Information Law, which at the time was not as
expansive in terms of rights of access as the current law, the
files of a building code enforcement agency, including records
indicating code violations, were found to be accessible [see Young
v. Town of Huntington, 388 NYS 2d 978 (1976)].

Fire or building code inspection reports, as well as inter-office memos, staff opinions and the like would fall within the
coverage of §87(2)(g) of the Freedom of Information Law. That
provision permits an agency 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.

To the extent that records pertain to multiple dwellings,
another provision of law might be relevant. Specifically, §307 of
the Multiple Residence Law, which refers to records of municipal
building departments, states that:

"All records of the department shall be
public. Upon request the department shall be
required to make a search and issue a
certificate of any of its records, including
violations, and shall have the power to charge
and collect reasonable fees for searches and
certificates."

When a complaint is made to an agency, as you suggested,
§87(2)(b) of the Freedom of Information Law maybe relevant. That
provision permits an agency to withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal
privacy."

With respect to such complaints, it has generally been advised
that the substance of a complaint is available, but that those
portions of the complaint which identify complainants may be
deleted on the ground that disclosure would result in an
unwarranted invasion of personal privacy. I point out that
§89(2)(b) states that an "agency may delete identifying details
when it makes records available." Further, the same provision
contains five examples of unwarranted invasions of personal
privacy, the last two of which include:

"iv. disclosure of information of a personal
nature when disclosure would result in
economic or personal hardship to the subject
party and such information is not relevant to
the work of the agency requesting or
maintaining it; or

v. disclosure of information of a personal
nature reported in confidence to an agency and
not relevant to the ordinary work of such
agency."

In my view, what is relevant to the work of the agency is the
substance of the complaint, i.e., whether or not the complaint has
merit. The identity of the person who made the complaint is often
irrelevant to the work of the agency, and in such circumstances, I
believe that identifying details may be deleted.

I also note that the Freedom of Information Law is permissive.
While an agency may withhold records in appropriate circumstances,
it is not required to do so. As stated by the Court of Appeals:

"while an agency is permitted to restrict
access to those records falling which the
statutory exemptions, the language of the
exemption provision contains permissible
rather than mandatory language, and it is
within the agency's discretion to disclose
such records, with or without identifying
details, if it so chooses" [Capital Newspapers
v. Burns, 67 NY 2d 562, 567 (1986)].

Therefore, while I believe that identifying details pertaining to
complainants may ordinarily be withheld, an agency is not
prohibited from disclosing the records in question in their
entirety.

Lastly, when it is clear that certain aspects of information
maintained electronically are available and others are deniable, it
is suggested that the system be designed and programmed so that the
available and deniable data can be readily segregated.

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

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