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Volume 9 - Opinions of Counsel SBEA No. 82

Opinions of Counsel index

Sales reporting (public inspection and copying) (transfer tax data for the City of New York) - Public Officers Law, § 87; Real Property Law, § 333(1-e); Real Property Tax Law, §§ 574(5), 738:

New York City transfer tax data, which is submitted to the State Board for use in the determination of residential assessment ratios, is not subject to public disclosure pursuant to the Freedom of Information Law.

An individual has requested permission to review a sales listing compiled from transfer tax data used by the New York State Division of Equalization and Assessment to calculate New York City’s 1990 residential assessment ratio. The individual requesting the data intends to use it in support of judicial review of a small claims assessment review determination.

Residential assessment ratios are computed on the basis of sales information reported to the State Board (RPTL, § 738(1)). Except for New York City, sales data is reported to the State Board on sales reporting forms (EA-5217), which must be filed before a deed may be accepted for recording by a county clerk (RPTL, § 574(5); RPL, § 333(1-e)).

Information reported on an EA-5217 is not generally available for public inspection and copying except for purposes of administrative and judicial review of assessments (RPTL, § 574(5); 9 NYCRR 191-2.4). The Appellate Division has held that before this exception to confidentiality applies, an assessment review proceeding must have been commenced (Property Valuation Analysts, Inc. v. Williams, 164 A.D.2d 131, 563 N.Y.S.2d 545 (3d Dept. 1990)). Thus, sales data obtained pursuant to these provisions is accessible, albeit in the limited circumstance of assessment review (see, 8 Op.Counsel SBEA No. 9).

These sales reporting provisions of State law, including those pertaining to public access, do not apply to New York City (RPL, § 333(1-e); RPTL, § 574(4)). Instead, the New York City residential assessment ratio is computed on the basis of sales data “reported pursuant to . . . chapter twenty-one of title eleven of the administrative code of the city of New York . . .” (RPTL, § 738(1)). Chapter 21 of Title 11 of the City’s Administrative Code pertains to the City’s real property transfer tax.

In Morris v. Martin, 55 N.Y.2d 1026, 434 N.E.2d 1079, 449 N.Y.S.2d 712 (1982), the Court of Appeals determined that New York City transfer tax information in possession of the State Board was a public record available through the Freedom of Information Law. Subsequent litigation determined that some of the transfer tax data supplied to the State Board on computer tapes was not public (David v. Lewisohn, 142 A.D.2d 305, 535 N.Y.S.2d 793 (3d Dept. 1988), mot. lv. to app. den., 74 N.Y.2d 610, 546 N.Y.S.2d 554 (1989); Brownstone Publishers, Inc. v. New York City Dept. of Finance, 75 N.Y.2d 791, 551 N.E.2d 585, 552 N.Y.S.2d 92 (1990)).

To overrule Morris, New York City successfully sought the enactment of chapter 714 of the Laws of 1989. Section 10 of chapter 714 amended section 11-2115 of the City’s Administrative Code, which provides that transfer tax returns are to be kept confidential. Specifically, a new subdivision (c) was added to section 11-2115: “This section shall be deemed a state statute for purposes of paragraph (a) of subdivision two of section eighty-seven of the public officers law.” It is that paragraph of the Freedom of Information Law which exempts from disclosure material “exempted from disclosure by state or federal statute.” Based on these provisions, a request for access to New York City transfer tax data used to compute the City’s residential assessment ratio must be denied. It should be noted, then, that greater confidentiality is given to New York City sales data than is given to sales data obtained from elsewhere in the State.

April 25, 1991

NOTE:  Construes law prior to L.2002, c.259.  Effective July 1, 1994, sales data reported to the State Board on the EA-5217 form is available for public inspection and copying.  New York City sales data, however, remains confidential, as is discussed above.