June 2, 2006
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.
I have received your letter in which you sought an advisory opinion concerning rights of access to an appraisal of your client’s property prepared in connection with eminent domain proceedings in the Village of Croton-on-Hudson.
You wrote that "the Village elected to voluntarily announce to the public during a meeting open to the public, as well as in the newspaper, that the approximate amount of the appraisal is ‘roughly $5 million.’" The materials attached to your letter indicate that Village Attorney Marianne Stecich said, "...I’m not going to give much of a hint about what the amount is but I just tell you that it is very, very, very comfortably under five million dollars." It is your contention that the "Village’s own actions of disclosing the value set forth in the appraisal....takes it out of the purview of Section 87(2)(c)" of the Freedom of Information Law. That provision authorizes an agency to deny access to records insofar as disclosure "would impair present or imminent contract awards..."
Due to the potential impact on Village taxpayers, I contacted Ms. Stecich to discuss the matter. She informed me that proceeding is far from completion and that the disclosures made by the Village might provide a minimal "hint" as to the appraised value of the parcel, but nothing more. That being so, it is likely in my view that disclosure of the appraisal would, at this juncture, impair the Village’s capacity to best serve its residents.
As you are aware, the Court of Appeals has sustained the assertion of §87(2)(c) in a case that did not clearly involve "contract awards" or collective bargaining negotiations. In Murray v. Troy Urban Renewal Agency [56 NY2d 888 (1982)], the issue pertained to real property transactions where appraisals in possession of an agency were requested prior to the consummation of a transaction. Because premature disclosure would have enabled the public to know the prices the agency sought, thereby potentially precluding the agency from receiving optimal prices, the agency's denial was upheld [see Murray v. Troy Urban Renewal Agency, 56 NY 2d 888 (1982)]. In the context of the facts as I understand them, disclosure of the appraisal to you and, therefore, your client, the owner of the parcel, could "impair" the ability of the Village to consummate a transaction in a manner optimal to taxpayers.
Further, the appraisal, whether it was prepared by Village staff or a consultant retained by the Village [see Xerox Corporation v. Town of Webster, 65 NY2d 131 (1985)], would constitute "intra-agency" material falling within the scope of §87(2)(g) of the Freedom of Information Law. I am mindful that subparagraph (i) requires the disclosure of "statistical or factual tabulations or data" found within inter-agency and intra-agency materials. However, there is precedent specifically relating to the report of a professional appraiser indicating that numerical figures within an appraisal might properly be withheld. In General Motors v. Town of Massena, it was found that:
"To prepare a real estate appraisal the professional appraiser must necessarily cull through public real estate transaction records from many sources to find properties which he or she, subjectively, deems similar enough to the subject property to warrant further analysis. This is much different, for example, from an appraisal that lists all the sales of commercial properties within a town for a certain period or all the transactions within the State with sales prices in excess of $10 million. Choosing any particular comparable property involves a thought process and professional judgment which cannot be classified as mere data gathering" [180 Misc.2d 682, 684 (1999)].
In short, it appears that the denial of access to the appraisal by the Village was and at this time continues to be consistent with law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Marianne Stecich