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Volume 11 - Opinions of Counsel SBRPS No. 36

Opinions of Counsel index

Public records (board of assessment review) (evidence submitted to board); Assessment review, board of (evidence submitted to board) (public access) - Public Officers Law, § 87; Real Property Tax Law, § 525:

Records submitted to a board of assessment review, either as part of an originally filed complaint or in response to a board’s demand, are available for public inspection and copying pursuant to the Freedom of Information Law unless the particular record fits within one or more of the exceptions specified in such law.

Our opinion has been requested as to the right of public access to information submitted to the board of assessment review for grievance day proceedings. Specifically, the question is if information submitted to the board at its request is available pursuant to the Freedom of Information Law (Public Officers Law, Art. 6) or otherwise.

Where a board of assessment review is not satisfied from the evidence presented to it that an assessment is excessive, unequal or unlawful, it may demand the submission of additional proof, and the willful refusal of a complainant to supply the same may result in dismissal of the complaint (Real Property Tax Law, §525(2)(a)). In our opinion, these demands must be reasonable (10 Op.Counsel SBRPS No. 80). However, whether a complainant submits evidence to the board on his or her own volition or in response to a board’s demand does not seem determinative of the issue at hand.

The Freedom of Information Law applies to State and municipal “agencies,” a term which includes municipal boards (Public Officers Law, §86(3)). While boards of assessment review have been described as quasi-judicial bodies (700 Shore Road Associates v. Board of Assessment Review, County of Nassau, 70 Misc.2d 822, 335 N.Y.S.2d 114 (Sup.Ct., Nassau Co., 1972)); 6 Op.Counsel SBEA No. 125), they are not part of the judiciary, which, like the State Legislature, is excluded from the definition of “agency” (Public Officers Law, §86(3)). Accordingly, the records of a board of assessment review are subject to the Freedom of Information Law.

This does not mean, however, that all records submitted to the board of assessment review are publicly available. Rather, like other records in possession of a State or municipal agency, they are subject to disclosure unless they fit within one or more of the statutory exceptions, two of which seem relevant to evidence that might be submitted to boards of assessment review.

First, records (or portions thereof) may be withheld from public disclosure if that disclosure would constitute an unwarranted invasion of personal privacy (Public Officers Law, §87(2)(b)). So, for example, income tax returns and personal financial information filed with exemption applications, the denial of which may be appealed to the board of assessment review (RPTL, §522(4)(b)), may be withheld from disclosure on this basis (11 Op.Counsel SBRPS No. 30).

Second, records (or portions thereof) may be withheld if they constitute trade secrets or if they are derived from a commercial enterprise and their release would cause substantial injury to the competitive position of the subject enterprise (Public Officers Law, §87(2)(d)). For example, in our opinion, income and expense statements submitted by an owner of income-producing property may be withheld on this basis (10 Op.Counsel SBRPS No. 17).

In conclusion, records submitted to a board of assessment review, either as part of an originally filed complaint or in response to a board’s demand, are available for public inspection and copying pursuant to the Freedom of Information Law unless the particular record fits within one or more of the exceptions specified in such law.

December 24, 2002

Updated: