Jeffrey L. Nogee and Andrew D. SternLast term the Legislature amended both the Real Property Tax Law (“RPTL”)1 and the Public Officers Law (“PBO”)2 declaring that making publicly available records relating to right, title and interest in real property, or relating to the inventory, status or characteristics of real property shall not be deemed an unwarranted invasion of personal privacy under New York’s Freedom of Information Law (“FOIL”).
Prior to the enactment of these amendments, the Courts in the Second Department had interpreted those statutes3 by finding such records to be private and not intended for commercial use, thereby exempting the records from disclosure under FOIL. These prior court interpretations gave local municipalities the basis for denying public access to the records, and in particular real property inventories.
This position put the Court at odds with the State of New York Department of State Committee on Open Government (the “Committee”), which is the executive body charged with interpreting FOIL. The Committee issues advisory opinions on whether or not a record ought to be publicly accessible under FOIL. The Committee had argued that records relating to the assessment of real property were available before FOIL was enacted and provided a number of theories as to how inventories might remain so.4 The appropriate balance between the competing interests of public access and individual privacy of real property records was focused in Article 78 proceedings concerning disclosure of real property inventories maintained by the various local governments and municipalities. On one hand, inventories are included under the definition of records under FOIL5 and records are presumptively obtainable.6 These records, prepared as part of the real property assessments under the RPTL, often contain detailed information concerning the assessed properties, including “tax map numbers … and the names and addresses of the corresponding property owners”7 or “the features of improved property, such as square footage, number of rooms, etc.”8
The four leading cases concerning the disclosure of inventories in the Second Department9 have involved businesses seeking assessment roles and inventories for commercial purposes.10 In those cases, the municipalities had declined to disclose the records and the businesses commenced Article 78 proceedings to compel the disclosure under FOIL.
The municipalities had opposed these petitions by alleging and successfully arguing that the records fell within two statutory exemptions: 1) the information in the inventory would be used for “commercial … purposes;”11 and 2) the disclosure of the inventories would constitute an “unwarranted invasion of personal privacy.”12
It is unclear whether the Courts, in agreeing with the municipalities, based their findings exclusively on the commercial use exemption or if they found the disclosure of such records improper both because of the enumerated exception and the more general spirit of the section of the statute.
The businesses had argued that the records were accessible under FOIL since the RPTL required the disclosure of the inventories and that the publishing requirements of Article 5 and Article 14 of the RPTL were designed to give taxpayers an opportunity to object to the property assessment. This argument was found in several advisory opinions of the Committee. For example, the Committee suggested that the access granted by the RPTL outweighed the FOIL exemption, because Public Officers Law §89(6) states that “[n]othing in this article shall be construed to limit or abridge any otherwise available right of access.” This was an argument that the Court had adopted with respect to assessment rolls.13
The Court declined to follow this argument with respect to inventories, however, holding that because the RPTL did not require the publishing of the records at the time, neither did FOIL.14 In a subsequent case, the Court more strongly declared that “[t]here is no merit to the petitioner’s position that Real Property Tax Law §501 mandated production of inventory data under FOIL.”15
The alternative argument pursued by the businesses, which found support from the Committee even after the Court had rejected it,16 was that the local governments and municipalities should redact the names and addresses of property owners, thereby putting the records within anther exception to the exemption under FOIL.17 The businesses argued that redaction of such information should make the records available to the public.
The Court disagreed. It found that “[t]he redaction of names and addresses from the inventory data would not protect privacy interests as the tax map numbers contained in that data would, nonetheless, enable the petitioner to identify the names and addresses of property owners through a comparison of the tax map.”18 While not a literal reading of the statute, which does not explicitly contemplate such forensic detection, the Court appeared to be more interested in the spirit of the exemption than its form.
While the judiciary may have been unsympathetic to businesses that wanted to make commercial use of such real property records, the legislature has turned out to be more agreeable. Two bills, one sponsored by New York State Senator Dean G. Skelos of Nassau County’s District 9 concerning FOIL directly19 and a second sponsored by Senator George H. Winner, Jr. of the 53rd Senate District concerning the RPTL,20 now have changed the statutes that framed the discourse.
In Public Officers Law §89(2)(b)(iii) the Legislature replaced the word “commercial” with the word “solicitation” as follows:
[S]ale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes;21
A fourth subsection also has been added to Public Officers Law §89(2)(b)(iv) that reads as follows:
[W]hen a record or group of records relates to the right, title or interest in real property, or relates to the inventory, status or characteristics of real property, in which case disclosure and providing copies of such record or group of records shall not be deemed an unwarranted invasion of personal privacy.
Using a belt and suspenders approach, the Legislature also amended RPTL §500(1) to read as follows:
The assessors in each city and town shall maintain an inventory of all the real property located therein including the names of the owners thereof and complete an annual update thereto on or before the first day of March. The physical characteristics of real property included in such inventory shall constitute a public record and shall be available for public inspection and copying in accordance with paragraph (b) of subdivision two of section eighty-seven of the public officers law except as provided in paragraphs (d) and (f) of subdivision two of section eighty-seven of the public officers law. Disclosure of the inventory data shall not be considered an unwarranted invasion of personal privacy as defined in subdivision two of section eighty-nine of the public officers law.22
Finally, the Legislature amended Section 1406 of the RPTL by adding a new subdivision RPTL §1406(6) as follows:
The village assessors shall maintain an inventory of all the real property located therein including the names of the owners thereof and complete an annual update thereto on or before the first day of January or such other date as may be applicable pursuant to section 5-510 of the village law. The physical characteristics of real property included in such inventory shall constitute a public record and be available for public inspection and copying in accordance with paragraph (b) of subdivision two of section eighty-seven of the public officers law except as provided in paragraphs (d) and (f) of subdivision two of section eighty-seven of the public officers law. Disclosure of the inventory data shall not be considered an unwarranted invasion of personal privacy as defined in subdivision two of section eighty-nine of the public officers law.
All of these amendments taken together do two things. First, they put inventories and other such real property records explicitly within the exception to FOIL’s personal privacy exemption. Second, by changing the prohibited use of the information from “commercial use” to “solicitation,” businesses can more easily satisfy the burden that their use is permissible.23
As a result of these Legislative changes, information that previously had been thought of as private will be more readily accessible to the public and to commercial enterprises that are interested in obtaining such information. It remains to be seen whether these changes will be beneficial and, if so, to whom.
Jeffrey L. Nogee is a member of the Real Property Law Committee and is Counsel at the law firm of Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., 377 Broadway, New York, New York 10013. Andrew D. Stern is an associate at Borah, Goldstein.
1. The Real Property Tax Law (“RPTL”) is comprised of Chapter 50-A of the Consolidated Laws of the State of New York. While several sections were amended during the most recent legislative session, this article will address amendments to Article 5, Section 500 and Article 14, Section 1406 of this chapter.
2. The Public Officers Law is comprised of Chapter 47 of the Consolidated Laws of the State of New York. While several sections of this title were amended during the most recent legislative session, this article will address the amendment to Section 89, which is, as part of Article 6 of this Chapter, also known as the Freedom of Information Law.
3. Comps, Inc. v. Town of Islip, 33 A.D.3d 796, 822 N.Y.S.2d 768 (N.Y.A.D.2d, 2006). 4. See State of New York Department of State Committee on Open Government Freedom of Information Law Advisory Opinion 13630 (September 24, 2002) (citing Sears Roebuck & Co. v. Hoyt, 107 N.Y.S.2d 756 (1951) and Sanchez v. Papontas, 32 A.D.2d 948 (1969)).
5. Comps Inc. v. Town of Huntington, 269 A.D.2d 446, 703 N.Y.S.2d 225 (N.Y.A.D.2d, 2000).
6. See Buffalo News Inc. v. Buffalo Enterprise Development Corp., 84 N.Y.2d 488, 644 N.E.2d 277 (1994). See also Public Officers Law §84.
7. Siegel, Fenchel & Peddy, P.C. v. Central Pine Barrens Joint Planning & Policy Com’n, 251 A.D.2d 670, 676 N.Y.S.2d 191 (N.Y.A.D.2d, 1998).
8. State of New York Department of State Committee on Open Government Freedom of Information Law Advisory Opinion 12421 (December 27, 2000).
9. See Property Tax Reduction Consultants, Inc. v. Township of Islip, 21 A.D.3d 376, 799 N.Y.S.2d 576 (N.Y.A.D.2d 2005); see also Comps, Inc. v. Town of Islip, supra.; Comps Inc. v. Town of Huntington supra.; Siegel, Fenchel & Peddy, P.C. v. Central Pine Barrens Joint Planning & Policy Com’n. supra.
10. The petitioners were a law firm specializing in tax certiorari, a consultancy specializing in property tax reduction, and a real estate appraiser and agent selling real estate data. The determination of commercial purpose has been made by the reviewing trial courts in the Article 78 proceedings. See Property Tax Reduction Consultants, Inc. v. Township of Islip, 21 A.D.3d at 377 (“the Supreme Court correctly found that [Petitioner-Appellant] sought access to the requested information for commercial purposes”).
11. Public Officers Law §89(2)(b)(iii) unamended stated “sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes.”
12. Public Officers Law §89(2) addresses what records should be disclosed as unwarranted invasions of personal privacy. Public Officers Law §89(2)(b) offers a list of nonexclusive examples that would constitute “[a]n unwarranted invasion of personal privacy.” §89(2)(c) provides a list of attributes of a record that would make the record accessible and thereby exempt from a more general exemption.
13. See State of New York Department of State Committee on Open Government Freedom of Information Law Advisory Opinion (December 28, 1998). (Citing Szikszay v. Buelow, 436 N.Y.S.2d 558, 583 (1981)).
14. Comps Inc. v. Town of Huntington, 269 A.D.2d at 447, 703 N.Y.S.2d at 226 (“Because the respondents have 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.”)
15. Comps, Inc. v. Town of Islip, 33 A.D.3d at 797, 822 N.Y.S.2d at 769.
16. State of New York Department of State Committee on Open Government Freedom of Information Law Advisory Opinion 15108 (January 7, 2005).
17. Public Officers Law §89(2)(c)(i) states that records shall not constitute an invasion of privacy “when the identifying details are deleted.” See also Comps Inc. v. Town of Huntington, 269 A.D.2d at 447, 703 N.Y.S.2d at 226
18. Id.
19. Chapter 223 S. 962-C Public Agency Records.
20. Chapter 479 S. 8228-A Public Access to Assessment Inventories.
21. The word eliminated has been struck and the word added has been set in bold for clarification.
22. The word eliminated has been struck and the word added has been set in bold for clarification.
23. For example, Comps, Inc., the petitioner is two of the four proceedings, sells the information it gathers. It does not, at least in so far as this service, technically use the information it gathers for solicitation, though certainly is for a commercial purpose.
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