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Volume 10 - Opinions of Counsel SBRPS No. 17

Opinions of Counsel index

Assessments, generally (income approach to value)(income and expense statements-public access); Public records (agency records)(income and expense statements) - Public Officers Law, §87; Real Property Tax Law, §305:

Income and expense statements submitted to an assessor by an owner of income-producing property for the assessor's use in assessing such property may be withheld from public inspection and copying.

We have been asked whether an income and expense statement pertaining to an income-producing property, which is submitted to an assessor for his or her use in assessing such property (Real Property Tax Law, §305), is a public record available for public and inspection and copying as prescribed in the Freedom of Information Law (Public Officers Law, Art. 6). In 9 Op.Counsel SBEA No. 7, issued after the decision of the Court of Appeals in 41 Kew Gardens Road Associates et al. v. Stanley Tyburski and C. et al., 70 N.Y.2d 325, 514 N.E.2d 1114, 520 N.Y.S.2d 544 (1987), we concluded that county, city, town and village assessing units may enact local laws to require owners of income-producing property to submit such statements. Our opinion does not address public accessibility to income and expense statements, whether such statements are submitted voluntarily or pursuant to local law.

Most assessment records are public records available for public inspection and copying pursuant to the Freedom of Information Law (10 Op.Counsel SBRPS No. 4). There are exceptions, however. For example, an "agency" (e.g., town) may deny access to "records or portions of records" that "are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise" (Public Officers Law, §87(2)(d)). In a December 21, 1993 opinion of the Committee on Open Government, its Executive Director wrote:

In my view, the proper assertion of §87(2)(d) is dependent upon a variety of factors, such as the specific content of the records, the area of commerce in which business entities are involved, the degree of competition within that area of commerce and, most importantly, the effect of disclosure, i.e., the extent to which disclosure would "cause substantial injury" to an entity's competitive position. I would conjecture that income and expense statements could often be withheld in great measure, if not in their entirely [sic], under §87(2)(d) (emphasis added).

We concur. In our opinion, then, income and expense statements submitted to an assessor by an owner of income-producing property for the assessor's use in assessing such property may be withheld from public inspection and copying.

February 28, 1996

Updated: