August 25, 2009



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.


            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records to the Town of Evans, and your subsequent appeal.  As previously advised, the Freedom of Information Law provides direction concerning the time and manner in which an agency must respond to a request.  So as not to duplicate previous comments, we refer you to our earlier correspondence, dated August 19, for an explanation of the statutory time limits.

            With respect to your questions concerning access to “duplicate tax bills”, we know of no statute or case law that would support an agency’s denial 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 (j).  Tax bills would, in our view, clearly be accessible, for none of the grounds for denial would apply.

            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 NYS2d 756 (1951); Sanchez v. Papontas, 32 AD 2d 948 (1969). For instance, 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 AD2d 131 (1990)].

            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.

            In addition, we note that new language was added to the Freedom of Information Law in August of 2008 as follows:

“(c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraph (a) and (b) of this subdivision:(iv.) when a record or group of records related to the right, title or interest in real property, or relates to the inventory, status or characteristics of real property, in which case disclosure and providing copies of such record or group of records shall not be deemed an unwarranted invasion of personal privacy.”  §89(2)(c)(iv).

            Accordingly, in our opinion, tax bills must be disclosed upon request.

            In response to your questions concerning fines and/or jail time for a failure to comply with the Freedom of Information Law, we note that '89(8) of the Freedom of Information Law and '240.35 of the Penal Law concern the "unlawful prevention of public access to records. The latter states that:

"A person is guilty of unlawful prevention of public access to records when, with intent to prevent the public inspection of a record pursuant to article six of the public officers law, he willfully conceals or destroys any such record."

            From our perspective, the preceding may be applicable in two circumstances: first, when an agency employee receives a request for a record and indicates that the agency does not maintain the record even though he or she knows that the agency does maintain the record; or second, when an agency employee destroys a record following a request for that record in order to prevent public disclosure of the record.  We do not believe that '240.65 applies when an agency denies access to a record, even though the basis for the denial may be inappropriate or erroneous, or when an agency cannot locate a record that must be maintained.
In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to Town officials.

            On behalf of the Committee on Open Government we hope that this is helpful to you.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director



cc: Hon. Carol A. Meissner
Hon. Francis J. Pordum