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Volume 7 - Opinions of Counsel SBEA No. 68

Opinions of Counsel index

Public records (revaluation data) (appraisal company) - Public Officers Law, Article 6; Real Property Tax Law, §§ 511, 572:

Real property assessment revaluation data being compiled by an independent appraisal company for eventual use in a county-wide reassessment program are not “records” subject to public rights to access within the Freedom of Information Law.

A question has been raised concerning the applicability of the Freedom of Information Law (Public Officers Law, Article 6) to real property assessment revaluation data being compiled by an independent appraisal company for a county-supported revaluation. The Executive Director of the Committee on Public Access to Records (C.O.P.A.R.) has concluded that, “even though the records in question may be preliminary in nature, . . . they are subject to rights of access granted by the Freedom of Information Law.” For several reasons, discussed below, we do not agree with his conclusion.

First, C.O.P.A.R. has concluded that the data prepared by the company, though not yet in the legal custody of the county, is a “record” within the meaning of subdivision 4 of section 86 of the Public Officers Law because it is “information . . . produced . . . for an agency . . . in any physical form whatsoever.” We cannot agree with this conclusion that “any physical form whatsoever” includes preliminary, non-final information. Rather, it seems evident that the quoted phrase refers to the various formats in which records may be maintained, and not to the stages of completion through which a record passes before completion. The statute includes examples of possible formats (e.g., files, books, photos, computer tapes or discs) which are defined as being included within the quoted phrase (§ 86(4)).

In McAulay v. Board of Education of the City of New York, 61 A.D.2d 1048, 403 N.Y.S.2d 116 (2d Dept., 1978), aff’d, 48 N.Y.2d 659, 396 N.E.2d 1033, 421 N.Y.S.2d 560 (1979), the petitioner sought disclosure of documents prepared by or for a hearing panel which heard her appeal from an unsatisfactory employment rating. On the basis of evidence gathered by a hearing panel, the Chancellor reversed the rating, but issued no opinion. In denying access to the record, the court agreed with the Board of Education’s conclusion that, “the subject documents represent precisely the kind of predecisional information which is prepared in order to assist the decision-making process and, hence, [are] exempt from disclosure” (403 N.Y.S.2d, at 117). The court went on to say:

The hearing panel documents or report sought are not final agency determinations or policy. Rather, they are predecisional material, prepared to assist an agency decision maker (here, the Chancellor) in arriving at his decision. Only the latter has the legal authority to decide whether the rating should stand (id). (Accord: Matter of Spaeth, 182 N.Y.L.J. (7/20/79) p. 13, col. 4).

We believe that rationale is equally applicable here. That is, in the case of revaluations, the information obtained by an appraisal contractor is “predecisional” until such time as it is adopted by assessing officials (Real Property Tax Law, § 572; 3 Op.Counsel SBEA No. 34).

Second, even if this preliminary data were held to be included within the definition of “record,” and was in the possession of the county, we believe the material could be withheld pursuant to section 87(2)(g) as “inter-agency” or “intra-agency” material. While it could be argued that this information would then constitute “statistical or factual tabulations or data” within the meaning of subparagraph (i) of section 87(2)(g) and, therefore, be subject to public disclosure, we believe it would not. In construing the meaning of “statistical or factual tabulations” made public by the original Freedom of Information Law (L.1974, c.578; repealed by L.1977, c.933), the court in Delaney v. Del Bello, 62 A.D.2d 281, 405 N.Y.S.2d 276 (2d Dept., 1978), stated, “it is noted that merely because a recommendation is drafted in statistical form, a magical transformation does not occur and alter its nature. It remains only a recommendation” (405 N.Y.S.2d, at 280).

Third, however, in this case, the requested information is not in the possession of the county. Of course, we agree that the county is an “agency” within the meaning of subdivision 3 of section 87 of the Public Officers Law and that the appraisal company retained by the county to assist in the revaluation is not. Therefore, it cannot be contended that this data is “inter-agency” material. Since the county does not have possession of the data, however, neither can it be deemed “intra-agency” material. Since the records are not in the possession of the county, we cannot agree that they are “agency records” accessible under subdivision 2 of section 87.

Moreover, subdivision 3 of section 89 of the Public Officers Law provides that in responding to a request for public records, an agency may “certify that it does not have possession of such record.” That same subdivision provides that the Freedom of Information Law may not be construed to require any entity to prepare any record it does not possess (but for two exceptions not relevant here).

Fourth, the Executive Director of C.O.P.A.R. ignored the variety of different materials generated during a revaluation project. Many of these, such as data collection forms, inventory content sheets, data mailers, and file content sheets are created and become public records at various stages of the project. In any review of the possible applicability of the Freedom of Information Law, it is essential that the distinctions between and among these materials be recognized and described (Public Officers Law, § 89(3)). The person seeking access to revaluation material should specify that which is being requested; and the entity maintaining custody of the material requested may also provide the requestor with a statement that the material will be made available at a specific future date (Public Officers Law, § 89(3)).

Finally, we believe that it is contrary to the public interest to conclude that this information is subject to the Freedom of Information Law. Discussing the common law privilege of “official information” in the possession of governmental agencies, the Court of Appeals has indicated that it was not abolished by the Freedom of Information Law, and stated that, “The hallmark of this privilege is that it is applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality” (Cirale v. 80 Pine Street Corporation, 35 N.Y.2d 113, at 117, 316N.E.2d301, 359N.Y.S.2d 1, at 4 (1974)). In our opinion, the premature release of non-final revaluation data is contrary to the public interest.

At the proper time, public accessibility to the data is not only a permitted aspect of a good revaluation program, it is a vital part of the success of the program. Consequently, we have sought the passage of laws and have promulgated rules to assure public access to the data, and indeed, explanations of the data (see, e.g., Real Property Tax Law, § 511; 9 NYCRR 190-2.1, 192-1.4).

The effect of the C.O.P.A.R. opinion is to permit any person at any time to inspect and copy any materials being compiled for possible use by assessors in the revaluation of property. In addition to being outside the scope of the Freedom of Information Law as we read it, this conclusion presents enormous practical difficulties, and would not serve the public interest.

December 22, 1980