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FOIL 18442

March 23, 2011

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear:

This is written in response to your correspondence dated November 15, 2010, addressed to Mr. Keith Herbert at Newsday.  While it is not typical that we respond to an agency’s response to an appeal made pursuant to the Freedom of Information Law, we believe that it is appropriate to do so in this instance.
As you noted, except in unusual circumstances, accident reports prepared by police agencies are available under both the Freedom of Information Law and §66-a of the Public Officers Law. Section 66-a states that:

"Notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provision of any city charter, all reports and records of any accident, kept or maintained by the state police or by the police department or force of any county, city, town, village or other district of the state, shall be open to the inspection of any person having an interest therein, or of such person's attorney or agent, even though the state or a municipal corporation or other subdivision thereof may have been involved in the accident; except that the authorities having custody of such reports or records may prescribe reasonable rules and regulations in regard to the time and manner of such inspection, and may withhold from inspection any reports or records the disclosure of which would interfere with the investigation or prosecution by such authorities of a crime involved in or connected with the accident."

The Freedom of Information Law is consistent with the language quoted above, for while accident reports are generally available, §87(2)(e)(i) of the Freedom of Information Law states in relevant part that records compiled for law enforcement purposes may be withheld to the extent that disclosure would "interfere with law enforcement investigations or judicial proceedings."

While we concur reliance on the determination in Scott, Sardano & Pomeranz v. Records Access Officer [65 NY 2d 294, 491 NYS 2d 289 (1985)] is appropriate, we believe that the ruling in actuality requires disclosure of the motor vehicle accident reports in their entirety.

In Scott, Sardano, supra, the Court of Appeals held that a right of access to accident reports "is not contingent upon the showing of some cognizable interest other than that inhering in being a member of the public" [Scott, Sardano & Pomeranz v. Records Access Officer, 65 NY 2d 294, 491 NYS 2d 289, 291 (1985)].  Accordingly, denial of access to such records in reliance on the language that disclosure should only be available to those persons “having an interest therein” is misplaced.  Clearly, a newspaper journalist represents the interests of the public.
Further, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in section 87(2)(a) through (k) of the Law. Accordingly, it is our opinion that both the Freedom of Information Law and §66-a would apply to require production of the report you requested in its entirety.

The court’s analysis of the matter in Scott, Sardano, is relevant here again, because it states that an agency may withhold names and addresses of individuals from accident reports when they are sought for commercial or fund-raising purposes, based on the exception set forth in §89(2)(b), which permits an agency to withhold information which if released would constitute an unwarranted invasion of personal privacy. Because the reports at issue in Scott, Sardano were requested by a law firm seeking to contact accident victims and to solicit their business, the court directed the City to delete names and addresses of the victims before making the reports available (see §§ 87[2][b] and 89[2][b]).

Based on the narrowness of the ruling in Scott, Sardano, it is our opinion that the Court did not give permission to an agency to redact anything from accident reports other than names and addresses when they are to be used for commercial or fund-raising purposes.

As we understand §66-a, there is nothing in that statute that would authorize an agency, such as the County, to withhold information from motor vehicle accident reports except as described above.  In addition to the broad definition of the term “record” appearing in the Freedom of Information Law, we point out that it has been held that even photographs made during the course of an investigation of an accident and other records comprising a police department’s investigation of an accident are part of the accident report and are, therefore,  available under §66-a of the Public Officers Law [see Fox v. New York, 28 AD 2d (1967); Romanchuk v. County of Westchester, 42 AD 2d 783, aff’d 34 NY 2d 906 (1973)].

In sum, it is our view, based on the language of the law and its judicial construction, that the accident reports should have been made available in full.

We hope that this is helpful.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJ:sb
cc:  Keith Herbert, Newsday