November 29, 2005
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.
We are in receipt of your September 26, 2005 request for an advisory opinion concerning the application of the Freedom of Information Law to your request for a copy of a motor vehicle accident report (MVA-104A) from the Tompkins County Sheriff’s Department.
We believe the document should be made available to you in its entirety. In this regard, we offer the following comments.
First, the Freedom of Information Law pertains to agency records, and §86(4) of the Law defines the term "record" to mean:
"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based on the foregoing, written materials comprising an accident report, as well as other documentation, including photographs taken at the scene by County employees, would in our opinion clearly constitute "records" subject to rights conferred by the Freedom of Information Law.
Second, 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 §87(2)(a) through (i) of the Law. We note that §89(6) states that if records are available under some other provision of law or by means of judicial interpretation, the grounds for denial appearing in §87(2) cannot be asserted.
Third, except in unusual circumstances, accident reports prepared by police agencies are in our opinion 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 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." Further, the state's highest court, the Court of Appeals, has 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)]. Therefore, unless disclosure would interfere with a criminal investigation, an accident report would be available to any person, including one who had no involvement in an accident.
As we understand §66-a, there is nothing in that statute that would authorize an agency, such as a County, to withhold the items redacted from the copy provided to you, namely details identifying the general physical and emotional state of those involved in the accident. Aside from 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)]. Again, except to the extent that disclosure would "interfere with the investigation involved in or connected with the accident", the documentation comprising the accident report must, in our view, be disclosed.
In an effort to enhance understanding of and compliance with the Freedom of Information Law, a copy of this advisory opinion will be forwarded to the County officials.
Camille S. Jobin-Davis
Cc: Sheriff Peter Meskill