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September 23, 1997



Mr. Bradley G. Kristel
5018 Madison Avenue
Indianapolis, IN 46227-4286

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

Dear Mr. Kristel:

As you are aware, your letter of July 21 addressed to the New York State Attorney General
has been forwarded to the Committee on Open Government. The Committee, a unit of the
Department of State, is authorized to provide guidance concerning the Freedom of Information Law.

In brief, having been ticketed for speeding by a state trooper, you asked whether an officer's
traffic citations are available for inspection, and if so, whether you may review them to ascertain
whether the officer issues citations "all at 75 mph." In your letter to the Division of State Police, you
asked to see "how many tickets were issued at 75 mph", how many were out-of-state drivers, and
"what the normal traffic ratio is on [a particular] stretch of the thruway for in-state vehicles vs out-of
state vehicles." In response to the request, you were informed that "we do not maintain records in
the manner which you describe..."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing records, and §89(3) of that statute
provides in part that an agency is not required to create a record in response to a request. Therefore,
if there is no breakdown, ratio or statistical compilation concerning in-state as opposed to out-of-state
traffic in a certain area, an agency would not be obliged to prepare new records in order to satisfy a

Second, an issue in my view involves whether or the extent to which your request "reasonably
described" the records sought as required by §89(3) of the Law. In considering that standard, the
State's highest court has found that requested records need not be "specifically designated", that to
meet the standard, the terms of a request must be adequate to enable the agency to locate the records,
and that an agency must "establish that 'the descriptions were insufficient for purposes of locating and
identifying the documents sought'...before denying a FOIL request for reasons of overbreadth"
[Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request
due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the
nature - or even the existence - of their indexing system: whether the
Department's files were indexed in a manner that would enable the
identification and location of documents in their possession (cf.
National Cable Tel. Assn. v Federal Communications Commn., 479
F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under
Federal Freedom of Information Act, 5 USC section 552 (a) (3), may
be presented where agency's indexing system was such that 'the
requested documents could not be identified by retracing a path
already trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of the
agency']" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court
of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing
or record-keeping systems. In Konigsberg, it appears that the agency was able to locate the records
on the basis of an inmate's name and identification number.

In the context of your request, I am unaware of the means by which the Division of State
Police maintains its records. If there is no way of locating tickets indicating a speed of 75 miles per
hour except by reviewing thousands of records individually, it is likely in my opinion that a court
would determine that the request would not have reasonably the records. On the other hand, if
speeding tickets issued within a particular time frame can be retrieved by means of the name of a
trooper, a request for all such tickets issued within that period would, in my view, meet the standard
imposed by the law. In that kind of situation, upon receipt of the tickets, an applicant could review
and analyze them in order to determine on his or her own whether tickets are routinely issued by
citing a certain speed.

Third, with respect to rights of access, 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 §87(2)(a) through (i) of the Law.

In the context of your inquiry, the Court of Appeals determined in 1984 that speeding tickets
issued and lists of violations of the Vehicle and Traffic Law complied by the State Police during a
certain period in a county must be disclosed, unless charges were dismissed and the records sealed
pursuant to §160.50 of the Criminal Procedure Law [see Johnson Newspaper Corp. V. Stainkamp,
61 NY2d 958). That provision states that when charges are dismissed in favor of an accused, the
records relating to an event are sealed.

Your remaining questions are beyond the jurisdiction of the Committee on Open Government.
However, as a service to you, I note that a deposition contains the testimony of a witness taken upon
interrogatories in a proceeding outside of a court. Also, I know of no law that "dictates the doubling
of the penalty if you elect to go to trial", rather than accepting a plea to a lesser charge.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Bruce M. Arnold, Assistant Deputy Superintendent