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OML-AO-4960

                                                                                                August 19, 2010

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


            I have received your letter and the materials relating to it concerning events relating to the presentation of your grievance before the Town of Lyonsdale Board of Assessment Review.

            In brief, following the receipt of notification that the assessment of your real property had been significantly increased, you requested notes prepared by the assessor pertaining to the change in the assessed value.  Although he indicated that he would send a copy of the notes, and despite your having submitted a written request for them, you indicated that you have never received the notes, nor have you been given a reason for the failure to disclose.  Thereafter, you initiated a challenge to the assessment and appeared before the Board of Assessment Review.  “Hovering about” in the meeting room while your complaint was being heard “was a gentleman who never introduced himself.”  During the hearing, you referred to various documentation and offered to supply original bills relating to construction on your property, but the Board chose not to accept or review those materials.  After finishing your presentation, “the Board thanked [you], and [you were] excused – departing from the hall.”  Despite your offer to provide original documentation, in rejecting your complaint, the reason given was that “the proof of value you presented was inadequate, because the supporting data was insufficient.”  Further, you learned later that the person “hovering about” is the Assessor, and that after you were excused, the Assessor was questioned by the Board concerning your assessment.

            In this regard, you have raised a variety of concerns relating to the situation, some of which involve matters beyond the expertise or jurisdiction of this office.  With respect to those materials pertinent to our functions, I offer the following comments.

            First, with respect to your request for the Assessor’s notes, I point out that the Freedom of Information Law is expansive, for it includes all records of an agency, such as a town, within its coverage.  Section 86(4) of that states defines the term “record” to mean:
"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."

In view of the scope of the provision quoted above, the Assessor’s notes would constitute “records” subject to rights of access.

            Second, 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 (k) of the Law.

            Insofar as the notes consist of facts, numbers, statistics and the like, I believe that they would be accessible pursuant to §87(2)(g)(i), for that provision requires the disclosure of “statistical or factual tabulations or data” contained within internal governmental communications.  Moreover, even before the Freedom of Information Law was enacted in 1974, it was held that assessment records, including pencil marked data cards, were accessible [see e.g., Sanchez v. Papontas, 32 AD2d 948 (1969)].

            Third, since you indicated that a written request for the notes was submitted, I point out that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests.  Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, which shall be reasonable in consideration of the circumstanced relating to the request and shall not exceed twenty business days from the date of such acknowledgment, except in unusual circumstances.  In the event that such unusual circumstances prevent the grant or denial of the request within twenty business days, the agency shall state in writing both the reason for the inability to do so and a date certain within a reasonable time, based on such unusual circumstances, when the request shall be granted or denied.”

            If neither a response to a request nor an acknowledgment of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgment, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)].  In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

            Section 89(4)(b) also states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.  In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.

            Next, I direct your attention to §525 of the Real Property Tax Law, entitled “Hearing and determination of complaints.”  That statute details the procedure applicable concerning proceedings before a board of assessment review.   Most pertinent in the context of the situation that you described are the final two sentences of subdivision (2)(a), which state that:

“Minutes of the examination of every person examined upon the hearing of any complaint shall be taken and filed in the office of the city or town clerk.  The assessor shall have the right to be heard on any complaint and upon his request his remarks with respect to any complaint shall be recorded in the minutes of the board.  Such remarks may be made only in open and public session of the board of assessment review” (emphasis added).

From my perspective, when you completed your remarks before the Board, you should not have been excused by the Board.  On the contrary, I believe that you had the right to be present to hear the comments offered by the Assessor and that, in fairness, and in a manner consistent with the direction provided in the statute quoted above, you should have been informed of the right to be present to listen to the Assessor’s remarks.

            Lastly, I know of no provision that requires that a hearing conducted by an assessment board of review be tape recorded, and no recording was made of the proceeding at issue.  For that reason alone, again, I believe that you should have been informed of your right to be present while the Assessor addressed the Board.

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

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cc:  Town Board
Board of Assessment Review
Peter Rodgers, Assessor