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Volume 11 - Opinions of Counsel SBRPS No. 30

Opinions of Counsel index

Senior citizens exemption (application) (application as public record); Public records (agency records) (applications for exemption) - Public Officers Law, § 87; Real Property Tax Law, § 467:

Income tax returns filed with applications for real property tax exemptions such as the senior citizens exemption are not subject to public inspection and copying under the Freedom of Information Law. [4 Op.Counsel SBEA No. 102 modified.]

Our opinion has been requested concerning public access to income tax returns that may be filed with applications for the senior citizens exemption (Real Property Tax Law, § 467). The requestor understands that the exemption applications themselves are public, but expresses concern regarding the personal nature of some of the personal and business income tax materials which may accompany the application.

As we discussed in 10 Op.Counsel SBRPS No. 4 [rev.], under the Freedom of Information Law [FOIL] (Public Officers Law, Art. 6), “[m]ost assessment records are public records.” As we also discussed therein, however, there are exceptions to the purview of the FOIL, although these exceptions are narrowly read (Encore College Bookstores, Inc. v. Auxiliary Service Corp. of State University of New York at Farmingdale, 87 N.Y.2d 410, 663 N.E.2d 302, 639 N.Y.S.2d 990 (1995)), so as to uphold the legislative intent of the FOIL which is to make government records public (Public Officers Law, § 84).

One of these exceptions is for information which “if disclosed would constitute an unwarranted invasion of personal privacy . . .” (Public Officers Law, § 87(2)(b)). The issue of public access to income tax information filed with real property tax exemption applications was addressed by Executive Director Robert J. Freeman of the Committee on Open Government in an August 10, 1992 opinion letter (FOIL-AO-7256) in which he states, “Insofar as applications for exemptions contain personal financial information, I believe that those portions of such records could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.” We agree with this conclusion.

However, even though such personal financial information may be withheld from disclosure as an unwarranted invasion of personal privacy, as we stated in 4 Op.Counsel SBEA No. 102, the exemption application itself is a public record, subject to disclosure. Therefore, a local assessor, upon receipt of a proper FOIL request, should release the application itself (with any personal income information thereon redacted), but need not (and, we believe, should not) disclose any attached copies of tax returns or other personal financial information submitted with the application.

To the extent that 4 Op.Counsel SBEA No. 102 may have been interpreted to indicate that income tax returns and personal financial information filed with applications for the senior citizens exemption were also subject to public disclosure, that opinion should be deemed to be modified.

November 5, 1997

NOTE:  When this opinion was issued in letter form, it expressed a similar conclusion as to the enhanced school tax relief [STAR] exemption (RPTL, § 425(4)). Subsequent to its issuance, the income provision of that exemption was amended (L.1999, c.405, Pt.A, § 4) to add a new provision (i.e., § 425(4)(b)(iii)) specifically prohibiting assessors and other municipal officials from releasing income information submitted in support of enhanced STAR exemption applications (see, Public Officers Law, § 87(2)(a)). That provision was again amended (L.2002, c.83, Pt.E, § 3) to permit limited release of such data (to this agency and through this agency to the Department of Taxation and Finance) for enhanced STAR income verification purposes in accordance with new provisions (i.e., (iv)-(vi)) added to section 425(4)(b) by that same amendment.