July 27, 1993
Hon. Thomas G. Clingan
          County Clerk
          Office of the Albany County Clerk
          Albany County Court House
          Albany, N.Y. 12207
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 Mr. Clingan:
 I have received your letter of July 19, as well as the
          materials attached to it.
 You have sought an advisory opinion concerning a request by a
          firm "that sells information on tax maps and related indices." The
          firm has in the past obtained microfilm copies of Albany County's
          tax maps, and your inquiry involves a recent request for a copy of
        "the computer tape of the tax mapping program's ownership listing." 
          In view of the firm's intent to resell the data, the Director of
          Real Property Tax Services has contended that the request should be
          denied on the ground that disclosure would constitute "an
          unwarranted invasion of personal privacy"; the First Assistant
          County Attorney, however, has advised that the data must be
          disclosed. It is noted that in her discussion of the issue, she
          pointed out that the "tax maps indicate by section, block and
          lot
          number real properties in the County," and that "[s]upplemental
          information regarding ownership data is also maintained, but
          separate from the map itself." Additionally, she stressed that
          ownership information, which does not appear in the data sought,
        "is readily available not only in each Assessor's office but also
          from the State and/or your office" (the Office of the Director
          of
          the Real Property Tax Service Agency).
In this regard, I offer the following comments.
 First, 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 section 87(2)(a) through (i) of the Law. 
 Second, with respect to the protection of personal privacy, as
          indicated earlier, §87(2)(b) of the Freedom of Information Law
          permits an agency to withhold records to the extent that disclosure
          would constitute "an unwarranted invasion of personal privacy". 
          Section 89(2)(b) describes a series of unwarranted invasions of
          personal privacy, including subparagraph (iii), which pertains to:
 "sale or release of lists of names and
  addresses if such lists would be used for
  commercial or fund-raising purposes. .. "
Therefore, if a list of names and addresses is requested for
          commercial or fund-raising purposes, an agency may, under most
          circumstances, withhold such a list. In this instance, the
          requested data does not include names and addresses. Consequently,
          I do not believe that the provisions concerning the protection of
          privacy, or any other ground for denial, could justifiably be
          asserted to withhold the computer tape in question. Moreover, more
          than a decade ago, it was held that a request for a county's tax
          maps must be granted, even though the applicant sought to use the
          maps for a commercial purpose [Szikszay v. Buelow, 436 NYS 2d 558
          (1981)]. In the same case, another issue was whether county
          assessment rolls were accessible under the Freedom of Information
          Law in computer tape format. In holding that they are, the court
          found that assessment rolls or equivalent records are public
          records and were public before the enactment of the Freedom of
          Information Law. Therefore, even if the data requested included
          the names and addresses of owners of real property, it would be
          accessible. Specifically, the court in Szikszay found that:
 "An assessment roll is a public record (Real
  Property Tax Law [section] 516 subd. 2;
  General Municipal Law [section] 51; County Law
  [section] 208 subd. 4). It must contain the
  name and mailing or billing address of the
  owner of the parcel (Real Property Tax Law
  [sections] 502, 504, 9 NYCRR [section]
  190-1(6)(1)). Such records are open to public
  inspection and copying except as otherwise
  provided by law (General Municipal Law
  [section] 51; County Law [section] 208 subd. 
  4). Even prior to the enactment of the Freedom
  of Information Law, and under its predecessor,
  Public Officers Law [section] 66, repealed
  L.1974, c. 578, assessment rolls and related
  records were treated as public records, open
  to public inspection and copying (Sanchez v. 
  Papontas, 32 A.D.2d 948, 303 N.Y.S.2d 711,
  Sears Roebuck & Co. v. Hoyt, 202 Misc. 43, 107
  N.Y.S.2d 756; Ops. State Comptroller 1967, p. 
  596)" (id. at 562, 563).
Further, in discussing the issue of privacy and citing the
          provision dealing with lists of names and addresses, it was held
          that:
 "The Freedom of Information Law limits access
  to records where disclosure would constitute
  'an unwarranted invasion of personal privacy'
  (Public Officers Law [section] 87 subd. 2(b),
  [section] 89 subd. 2(b)iii). In view of the
  history of public access to assessment
  records, and the continued availability of
  such records to public inspection, whatever
  invasion of privacy may result by providing
  copies of A.R.L.M. computer tapes to
  petitioner would appear to be permissible
  rather than 'unwarranted' (cf. Advisory Opns.
  of Committee on Public Access to Records, June
  12, 1979, FOIL-AO-1164). In addition,
  considering the legislative purpose behind the
  Freedom of Information Law, it would be
  anomalous to permit the statute to be used as
  a shield by government to prevent disclosure. 
  In this regard, Public Officers Law [section]
  89 subd. 5 specifically provides: 'Nothing in
  this article shall be construed to limit or
  abridge any otherwise available right of
  access at law or in equity of any party to
  records.'" [id. at 563; now section 89(6)].
The court stated further that:
 "...the records in question can be viewed by
  any person and presumably copies of portions
  obtained, simply by walking into the
  appropriate county, city, or town office. It
  appears that petitioner could obtain the
  information he seeks if he wanted to spend the
  time to go through the records manually and
  copy the necessary information. Therefore,
  the balancing of interests, otherwise
  required, between the right of individual
  privacy on the one hand and the public
  interest in dissemination of information on
  the other...need not be undertaken...
 "Assessment records are public information
  pursuant to other provisions of law and have
  been for sometime. The form of the records
  and petitioner' s purpose in seeking them do
  not alter their public character or
  petitioner's concomitant right to inspect and
  copy" (id.).
Based upon the foregoing, I believe that an assessment roll or its
          equivalent should be disclosed. I point out that the same
          conclusion was reached by Supreme Court in Nassau County in an
          unreported decision [Real Estate Data, Inc. v. County of Nassau,
          Supreme Court, Nassau County, September 18, 1981].
 In short, both tax maps and computer tapes of assessment rolls
          have been found to be available, notwithstanding the fact that they
          may be requested for a commercial purpose.
 Lastly, with respect to fees, §87(1)(b)(ii) of the Freedom of
          Information Law states in part that for reproducing records that
          cannot be photocopied (i.e., computer tapes), an agency may charge
          a fee based on the actual cost of reproduction. However, as you
          are aware, legislation has been prepared by the Committee on Open
          Government and introduced at the request of the Governor to enable
          agencies to establish fees based upon the commercial utility of
          records in certain circumstances, one of which would include the
          kinds of records at issue. Although the legislation has not been
          approved, I believe that interest is significant and that the bill,
          or something similar to it, will be enacted in the not too distant
          future.
 I hope that I have been of some assistance. Should any
          further questions arise, please feel free to contact me.
Sincerely,
 Robert J. Freeman
  Executive Director
RJF:pb
cc: John Lynch
  Christine Marbach Kellett        
 State of New York
State of New York