Volume 10 - Opinions of Counsel SBRPS No. 4 (rev.)
Public records (revaluation data) (inventory) - Public Officers Law, §§ 86, 87; Real Property Tax Law, §§ 501, 511, 572:
Objective real property inventory data used in assessment administration, though subject to change, is always a public record. The property owner name and address portion of a computer tape used to generate property inventory data mailers may be withheld if it is sought for a commercial or fund-raising purpose. Preliminary assessments included on assessment disclosure notices are available for public inspection and copying.
In 1995, our opinion was requested concerning public access to data collected as part of a revaluation project. The questions concerned access to data mailers, other inventory and valuation data and “full disclosure” notices. {1} We issued our opinion (as 10 Op.Counsel SBRPS No. 4) that same year, but a recent Appellate Division decision has caused us to replace that opinion with this revised version.
In Matter of Comps, Inc. v. Town of Huntington, 269 A.D.2d 446, 703 N.Y.S.2d 225 (2d Dept., 2000), mot. lv. to app. den., 95 N.Y.2d 758, 735 N.E.2d 1287, 713 N.Y.S.2d 522 (2000), the Appellate Division upheld the lower court’s determination that inventory data is a “record” within the meaning of the Freedom of Information Law [FOIL] (Public Officers Law, §§ 84-90). It determined, however, that the privacy exemption of section 89(2)(b)(iii) of the Public Officers Law [discussed infra applied to the inventory, finding that the party requesting the inventory intended to use it for commercial purposes. Most significantly, from our point of view, the court then concluded, “Because the [town has] not utilized the inventory data for the purposes of any assessment or reassessment, they are not under any statutory duty to publish the inventory data at this time [citing, inter alia, RPTL, §§ 500(1), 501]” (269 A.D.2d at 447, 703 N.Y.S.2d at 226).
The FOIL makes all “agency” (e.g., a State or municipal department) “records” (Public Officers Law, § 86(4)) available for public inspection and copying with certain narrowly defined exemptions. One such exemption is for information the disclosure of which “would constitute an unwarranted invasion of personal privacy under the provisions of [Public Officers Law, § 89(2)]” (Public Officers Law, § 87(2)(b)). Another exemption is for “inter-agency or intra-agency materials” (Public Officers Law, § 87(2)(g)). The law, however, also excepts four types of records from this exemption: (i) statistical or factual tabulations or data, (ii) instructions to staff that affect the public, (iii) final agency policy or determinations and (iv) external audits. The effect of these exceptions is to make these four types of inter-agency and intra-agency materials available to the public.
Most assessment records are public records. Indeed, the Real Property Tax Law includes a number of provisions specifically identifying various assessment roll and tax roll records as public records (e.g., property inventory [RPTL, §§ 500(1), 501]; sales data [RPTL, § 574(5)] {2}; tentative assessment roll [RPTL, § 506(3)]; final assessment roll [RPTL, §§ 516(2), 1412]; final assessment roll with taxes extended [RPTL, § 900(3)]; tax roll [RPTL, §§ 946, 1330(3), 1332(4), 1436(3), 1588]).
We have addressed the issue of public access to assessment and tax records in several of our Opinions of Counsel. In 4 Op.Counsel SBEA No. 25, we concluded that, “Assessors’ workbooks or field books constitute public records which may be inspected or copied.” The text of that Opinion addresses property inventory data, and we continue to believe that such data, when used in assessment administration, is available to the public (Property Valuation Analysts v. Williams, 164 A.D.2d 131, 563 N.Y.S.2d 545 (3d Dept., 1990); Gannett Satellite Information Network, Inc. v. City of Elmira, Sup.Ct., Chemung Co., Index No. 94-1752 (8/26/94), Ellison, J., R.P.T.A.R., Vol. 2, No. 4, p. 38). {3}
In 7 Op.Counsel SBEA No. 68, we concluded that, “Real property assessment revaluation data being compiled by an independent appraisal company {4} for eventual use in a county-wide reassessment program are not ‘records’ subject to public rights to access within the Freedom of Information Law.” We expressed concern that this data, not yet turned over to the assessors, was predecisional opinion, and that the “premature release of non-final revaluation data is contrary to the public interest” (accord: Gannett Satellite, supra). We also concluded that, after the data is turned over to the assessors, public accessibility is a vital part of a successful revaluation program.
In 8 Op.Counsel SBEA No. 27, we stated that most “reports and documents prepared by or used in conjunction with the New York State Real Property Information System constitute public records and are available for inspection and copying.” So, we concluded that the file content sheet (FCS), containing a written description of the assessment information on the assessor’s data file, was a public record. We also expressed the opinion that the data management file maintenance report, used by the assessor and sent to the county to correct data, could be withheld as intra-agency material, not falling within one of the exceptions to the FOIL exemption discussed above.
Inventory
We believe that assessment inventory data used in assessment administration is generally accessible by the public. Of course, inventory data available on a given day may be subject to change at any time as the assessor becomes aware of new or additional information and updates the inventory accordingly. In our opinion, Comps, (supra), stands for the proposition that where data is being initially collected (perhaps as part of an assessment revaluation effort) or recollected (perhaps as part of an assessment update), in toto, that data may be lawfully withheld from public inspection and/or copying at the discretion of the custodian-assessing unit, until it is used for assessment purposes.
True, many property owners might prefer that the inventories of their properties, especially their homes, never be publicly available, but the very nature of the property tax requires that such information be public. The tax base is composed of the aggregate taxable assessments of property within the assessing unit. If one property is assessed at a ratio which is less than the prevailing level of assessment, this causes a shift in the tax burden (through a higher tax rate) to all other taxable properties. Property owners cannot effectively compare their assessments to those of their neighbors (or, for that matter, any property within the assessing unit) if they cannot also compare their respective inventories. {5}
Therefore, in our opinion, an assessor’s factual property inventory (e.g., square footage, number of rooms) is public information, even though that information is subject to change. Indeed, the very purpose of the annual notice of the availability of the assessor’s inventory (RPTL, § 501) is to prompt public inspection - and, if necessary, correction - of that inventory. {6} Opinion data (e.g., a preliminary estimate of value made by an assessor or revaluation contractor) is not accessible until the appropriate time (David v. Lewisohn, 142 A.D.2d 305, 535 N.Y.S.2d 793 (3d Dept., 1988), app.den., 74 N.Y.2d 610, 545 N.E.2d 868, 546 N.Y.S.2d 554 (1989); Gannett Satellite, supra. It could be argued that the portion of the assessor’s inventory which contains subjective opinion (e.g., condition of kitchen, site appraisal) may be withheld until the annual review of inventory is completed and notice published (RPTL, §§ 500(1), 501), but, from a public relations standpoint, assessors may find it advantageous to make inventories fully available. Additionally, where public and non-public information is combined in a record, the record must be redacted (i.e., non-public items removed) before the record is released. Whether it is preferable to do so or to release all of the record, notwithstanding the presence of an opinion of value subject to change, is a decision best left to the custodian of the record.
Names and addresses
Just because the inventory data is available does not necessarily mean that the computer tapes used to generate the data mailers are completely available. That portion of the data which contains property owners’ names and addresses may be withheld if it would be used for commercial or fund-raising purposes (Public Officers Law, § 89(2)(b)(iii); Comps, supra)). {7}
Assessment disclosure notices
The mailing of assessment disclosure notices is the assessor’s responsibility (RPTL, § 511). In our opinion, once these notices are mailed, they are no longer pre-decisional opinion information which may be withheld from disclosure. Where, as part of the revaluation contract, a revaluation contractor mails assessment (or full) disclosure notices on behalf of the assessor, that data would still become a public record at the time of mailing of the notices.
April 10, 1995
Revised April 17, 2001
{1} The full disclosure notice, required where Real Property Tax Law, Article 15-B State aid is sought for revaluation purposes, is a more detailed version of the statutorily required assessment disclosure notice (RPTL, § 511; State Board Rules, 190-2.1, 192-4.3).
{2} Access to real property sales data was previously limited, but that limitation has been removed (see, 10 Op.Counsel SBRPS No. 3).
{3} Citation is to The Real Property Tax Administration Reporter, a publication of the State Board of Real Property Services.
{4} Assessing units may employ experts in assessing property and often do in revaluation projects (RPTL, § 572).
{5} This would not be the case where a property’s inventory is not considered in valuing the property (see 10 Op.Counsel SBRPS No. 17 in which we conclude that income and expense statements used to value property by the capitalization of income methodology may be withheld from public disclosure if the owner claims trade secret protection (Public Officers Law, § 87(2)(d)).
{6} “It is obvious that assessment inventory and valuation data is an essential element in the assessment of each parcel. *** It is hoped that inspection of these records may result in the discovery and correction of errors prior to the completion of the assessment roll. This should then lessen the burden of the board of assessment review and, perhaps, even the courts” (Memorandum of State Board of Equalization and Assessment to bill enacted as L.1981 NYS Legislative Annual, p.415, at 416).
{7} We recognize, of course, that assessment rolls, which we have said are public records in toto, also include names and addresses. As noted above, assessment rolls were public records long before the Freedom of Information Law was enacted, and we do not believe that that law, written to increase public accessibility to records should be read to limit access to that which has long been public. Once the assessment roll is prepared, therefore, the names and addresses thereon are public records.