June 20, 2005

Mr. James P. Drohan, Esq.

2517 Route 52

Hopewell Junction, NY 12533

Mr. David Hagstrom

P.O. Box 112

Poughkeepsie, NY 12602

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 Messrs. Drohan and Hagstrom:

            I have received your letters and apologize for the delay in response. Mr. Drohan, in his capacity as attorney for the Spackenkill Central School District, has sought an opinion on behalf of the District concerning rights of access to a real property appraisal report pertaining to properties at issue in certiorari proceedings involving the Town of Poughkeepsie as a defendant. Mr. Hagstrom represents the Town in those proceedings. Although a settlement has been reached, it is my understanding that some elements of the certiorari actions have not been concluded. Based on that assumption, I offer the following comments.

            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.

From my perspective, two of the grounds for denial of access are pertinent to consideration of the matter.

            Section 87(2)(g) authorizes an agency, such as a town, to withhold "inter-agency or intra-agency materials." When an appraisal or survey is prepared by agency officials, it may be characterized as "intra-agency material." Additionally, the Court of Appeals has held that appraisals and other reports prepared by consultants retained by agencies may also be considered as intra-agency materials subject to the provisions of §87(2)(g) [see Xerox Corporation v. Town of Webster, 65 NY 2d 131 (1985)].

            More specifically, §87(2)(g) states that an agency may 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 may 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.

            It has been held that factual information appearing in narrative form, as well as those portions appearing in numerical or tabular form, is available under §87(2)(g)(i).

            Those portions of appraisals reflective of an appraiser’s opinion may, in my view, clearly be withheld pursuant to §87(2)(g). Other portions of an appraisal consisting of statistical or factual information should be accessible, again, unless a different exception to rights of access may be asserted.

            One such exception relates to §87(2)(a) concerning records that “are specifically exempted from disclosure by state or federal statute.” If the appraisals at issue have not been exchanged or filed, and if they were prepared for litigation, it appears that they would be exempt from disclosure. As stated in Orange & Rockland Utilities, Inc. v. Assessor of Town of Haverstraw (Supreme Court, Rockland County, October 21, 2004):


“CPLR §3140 and 22 N.Y.C.R.R 202.59(g)(1) direct the parties in a tax assessment review proceeding to exchange all appraisal reports intended to be used at trial. It is well settled, however, that any unexchanged and unfiled appraisal reports prepared by a consulting expert qualify as material prepared in anticipation of litigation pursuant to CPLR 3102(d)(2) and are, generally, not discoverable....”

            Based on the foregoing, if indeed the appraisal reports remain “unexchanged and unfiled”, it appears that they would be exempt from disclosure.

            I hope that I have been of assistance.


                                                                                                Robert J. Freeman

                                                                                                Executive Director