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April 26, 1994

 

 

Ms. Donna A. Combs
Town Clerk/RMO
Town of Warrensburg
Warrensburg, NY 12885

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 Ms. Combs:

I have received your letter of March 16. Please accept my
apologies for the delay in response.

You referred to a conversation in which we discussed a request
for the "Real Property Gross System (alphabetical indexing) of
total assessed value found in the front of tax rolls "and indicated
that the Town Assessor "took it upon himself to deny this request,
after conferring with the Town Supervisor and the Deputy Town
Supervisor, circumventing [your] office". Attached to your letter
is a memorandum prepared by the Assessor concerning the request,
which was made by a member of the Town Board. The Assessor
expressed the opinion "that the possession of assessment
information by an elected official would be detrimental to the
operation of the assessment office and in conflict with the Real
Property Tax Law".

You have sought my views on the matter. In this regard, I
offer the following comments.

First, §30 of the Town Law states in part that the town clerk:
"Shall have the custody of all the records, books and papers of the
town". Therefore, even though the Assessor may have physical
possession of the records in question, as Town Clerk, I believe
that you have legal custody of the records.

Second, it is noted that §89(1)(b)(iii) of the Freedom of
Information Law requires the Committee on Open Government to
promulgate regulations concerning the procedural aspects of the Law
(see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states
that:

"the governing body of each public corporation
shall promulgate uniform rules and regulations
for all agencies in such public corporation
pursuant to such general rules and regulations
as may be promulgated by the committee on open
government in conformity with the provisions
of this article, pertaining to the
administration of this article."

In this instance, the governing body of a public corporation, the
Town Board, is required to promulgate appropriate rules and
regulations consistent with those adopted by the Committee on Open
Government and with the Freedom of Information Law.

The initial responsibility to deal with requests is borne by
an agency's records access officer, and the Committee's regulations
provide direction concerning the designation and duties of a
records access officer. Specifically, §1401.2 of the regulations
provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so."

As such, the Town Board has the ability to designate "one or more
persons as records access officer". Further, §1401.2(b) of the
regulations describes the duties of a records access officer,
including the duty to coordinate the agency's response to requests.
If you have been designated records access officer, I believe that
you have the authority to make initial determinations to grant or
deny access to records in response to requests made under the
Freedom of Information Law.

Third, 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. Moreover,
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).

Assuming that the records in question are available under the
Freedom of Information Law, and I believe that they are, they would
be available to any person, without regard to status or interest
[see M. Farbman & Sons v. New York City Health and Hosps. Corp., 62
NY 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD
2d 673, 378 NYS 2d 165 (1976)]. Certainly an elected official
would enjoy at least the same rights of access as any member of the
public.

Lastly, when records are accessible under the Freedom of
Information Law, they must be made available for inspection and
copying [see §87(2)]. Moreover, when an applicant chooses to pay
the requisite fee, §89(3) of the Law requires that an agency make
copies of the records.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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