February 22, 1996

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.


I have received your letter of February 1, in which you sought assistance in obtaining certain information from the Weedsport Central School District.

According to your letter and the correspondence attached to it, due to what you characterized as the "poor design" of school tax bills, you and apparently others have made mistakes and paid your taxes late, thereby incurring penalties for late payment. Your view of the misleading nature of the bill is not unique, for you wrote that the Cayuga County Treasurer indicated that "he had received many complaints about the design of the Weedsport School tax bill and that many people had made innocent mistakes similar to [yours]."

Although you paid the penalty, you protested before the Board of Education, which rejected your request for the return of penalties that you paid. In addition, you wrote that you informed the District of your intent to bring suit in Small Claims Court for return of the penalty amount and "requested, in writing, the names, addresses and phone numbers of the other 46 people who faced the same penalty predicament as [you]".

In this regard, I offer the following comments.

First, the Court of Appeals, the State's highest court, has held that one's status as a litigant or potential litigant has no effect on his or her rights of access as a member of the public when seeking records under the Freedom of Information Law [see Farbman v. NYC Health and Hospitals Corp., 62 NY 2d 75 (1984)]. Therefore, if the information sought is otherwise available under the Freedom of Information Law, the District in my opinion, could not withhold it from you due to your status as a litigant or potential litigant, or because you might use the information in conjunction with a lawsuit.

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 (i) of the Law. In my view, one of the grounds for denial is relevant to an analysis of rights of access. Specifically, §87(2)(b) states that an agency may withhold records to the extent that disclosure would result in "an unwarranted invasion of personal privacy". In addition, §89(2)(b) includes a series of examples of unwarranted invasions of privacy.

Records relating to the assessment and collection of real property taxes, including the school tax, have long been a matter of public record not only under the Freedom of Information Law, but also pursuant to laws preceding the enactment of that statute. For instance, the contents of assessment rolls, which identify the owners of real property, the assessed value of the property, and the amount of tax owed or paid, are accessible to the public {see e.g., Szikszay v. Buelow, 436 NYS 2d 558 (1981)]. Therefore, insofar as records identify those owners of real property that have not paid their taxes on time or that have been penalized due to late payment or non-payment are, in my opinion, clearly accessible to the public. Similarly, the imposition of a penalty indicates that a final agency determination has been made, and a record so indicating would be available [see Freedom of Information Law, §87(2)(g)(iii)]. In short, I believe that records identifying the owners of those parcels of real property against whom penalties have been imposed, including their addresses, must be disclosed.

On the other hand, however, I believe that the telephone numbers of those who have been penalized may be withheld as an unwarranted invasion of personal privacy. The home phone numbers likely do not appear on the kinds of records described above. Moreover, many people have chosen to have unlisted phone numbers in an effort to protect their privacy.

Lastly, one of the examples of an unwarranted invasion of personal privacy appearing in §89(2)(b) involves the ability to withhold a list of names and addresses if the list would be used for "commercial or fund-raising purposes". Consequently, if the names and addresses of the property owners in question would be used for a commercial or fund-raising purpose, I believe that the District could justifiably deny access. However, if that is not your intent, the names and addresses must in my opinion be disclosed.

In an effort to enhance compliance with and understanding of the Freedom of Information Law, a copy of this opinion will be forwarded to the Board of Education.

I hope that I have been of some assistance.



                                                                                                Robert J. Freeman
                                                                                                Executive Director


cc: Board of Education