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July 12, 2000

FOIL-AO-12206

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

I have received your letter of June 9 in which you asked that I confirm a conversation
that we had concerning a request made under the Freedom of Information Law to the Suffolk
County Police Department.

The request involves all motor vehicle accident reports handled by the Department on
a weekly basis, and you indicated that there are approximately 800 reports prepared each
week. The applicant for the records informed you that he is an attorney representing an
"Internet News Media Organization that is based in Colorado" and that, "in his capacity as a
news media representative", he contends that the Department must provide him with all
accident reports within "five days of his request", despite the volume of his request and the
number of other requests received by the Department. You also wrote that he has refused to
disclose the reasons for his request.

You have raised a series of questions in relation to the foregoing, and I will attempt to
deal with each of them.

First, under §89(3) of the Freedom of Information Law, an agency may require that a
request be made in writing. It is unclear whether the applicant requests records on a weekly
basis or whether the request is prospective. In this regard, there is no provision in the
Freedom of Information Law concerning prospective applications for records, i.e., requests
for records that may be prepared, but which do not exist at the time a request is made. An
agency can choose to agree to such an arrangement. However, in my view, because it
pertains to existing records, the Freedom of Information Law does not require that an agency
agree to supply records that do not yet exist.

In a somewhat related vein, although you did not raise the issue, I note that it has been
held that an agency may require payment in advance of preparing copies of records (see
Sambucci v. McGuire, Supreme Court, New York County, November 4, 1982).

Second, the Freedom of Information Law provides direction concerning the time and
manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of
Information Law states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the
person requesting it, deny such request in writing or furnish a
written acknowledgement of the receipt of such request and a
statement of the approximate date when such request will be
granted or denied..."

I emphasize that although an agency must grant access to records, deny access or
acknowledge the receipt of a request within five business days, when such acknowledgement
is given, there is no precise time period within which an agency must grant or deny access to
records. The time needed to do so may be dependent upon the volume of a request, the
possibility that other requests have been made, the necessity to conduct legal research, the
search and retrieval techniques used to locate the records and the like. In short, when an
agency acknowledges the receipt of a request because more than five business days may be
needed to grant or deny a request, so long as it provides an approximate date indicating when
the request will be granted or denied, and that date is reasonable in view of the attendant
circumstances, I believe that the agency would be acting in compliance with law.

Third, the Freedom of Information Law generally does not distinguish among
applicants for records, and members of the news media and their representatives enjoy no
special rights. Therefore, I believe that you may deal with the applicant's requests in the
same manner or order as any others. Similarly, in all but one instance, the reasons for which
a request is made and an applicant's potential use of records are irrelevant, and it has been
held that if records are accessible, they should be made equally available to any person,
without regard to status or interest [see e.g., M. Farbman & Sons v. New York City, 62 NYS
2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165
(1976)]. Therefore, if the records are available by law, the intended use of the records
ordinarily has no effect on rights of access. As stated by the Court of Appeals, the State's
highest court:

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose; while
its purpose may be to shed light on government decision-
making, its ambit is not confined to records actually used in the
decision-making process. (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure
by public agencies is, under FOIL, a public right and in the
public interest, irrespective of the status or need of the person
making the request" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

The only exception to the principles described above involves one provision
pertaining to the protection of personal privacy. By way of background, §87(2)(b) of the
Freedom of Information Law permits an agency to withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal privacy." Further,
§89(2)(b) of the Law provides a series of examples of unwarranted invasions of personal
privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists
would be used for commercial or fund-raising purposes"
[§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an internal conflict in the
law. As indicated earlier, the status of an applicant and the purposes for which a request is
made are irrelevant to rights of access, and an agency cannot ordinarily inquire as to the
intended use of records. However, due to the language of §89(2)(b)(iii), rights of access to a
list of names and addresses, or equivalent records, may be contingent upon the purpose for
which a request is made [see Scott, Sardano & Pomeranz v. Records Access Officer of
Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162
(1983)].

In a case involving a list of names and addresses in which the agency inquired as to
the purpose for which the list was requested, it was found that an agency could make such an
inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs
(Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied
upon an opinion rendered by this office in which it was advised that an agency may
appropriately require that an applicant for a list of names and addresses provide an assurance
that a list of names and addresses will not be used for commercial or fund-raising purposes.
In that decision, it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the
record does it appear that petitioner intends to use the
information sought for commercial or fund-raising purposes.
However, the reason for that deficiency in the record is that all
efforts by respondents to receive petitioner's assurance that the
information sought would not be so used apparently were
unsuccessful. Without that assurance the respondents could
reasonably infer that petitioner did want to use the information
for commercial or fund-raising purposes."

In addition, it was held that:

"[U]nder the circumstances, the Court finds that it was not
unreasonable for respondents to require petitioner to submit a
certification that the information sought would not be used for
commercial purposes. Petitioner has failed to establish that the
respondents denial or petitioner's request for information
constituted an abuse of discretion as a matter of law, and the
Court declines to substitute its judgement for that of the
respondents" (id.).

Based on the foregoing, as a condition precedent to disclosure, I believe that you
could require the applicant to certify in writing that the records in question, which include
names and addresses and could be used to develop a list for a commercial use, will not be
used for any commercial or fund-raising purpose. It is noted that Scott, Sardano &
Pomeranz, supra, dealt with a request by a law firm for all accidents reports maintained by
the City of Syracuse so that it could solicit accident victims. Although the Court held that
accident reports are generally public, it found that the names and addresses of the accident
victims could be withheld on the ground that disclosure would constitute an unwarranted
invasion of personal privacy. In that case, the request did not involve a list of names and
addresses per se, but it involved the equivalent: an array of records that could be used to
develop a mailing list.

If the applicant has certified that he would not use the records for a commercial
purpose and you learn that he has done so, it is likely that various provisions of the Penal
Law would have been violated. If prosecution is not an option, in view of the breach of an
agreement or understanding, it is suggested that you may refuse to make any further
disclosures of the same kinds of records to him.

Fourth, except in unusual circumstances, accident reports prepared by police agencies
are in my opinion available under both the Freedom of Information Law and §66-a of the
Public Officers Law. Section 66-a was enacted in 1941 and states that:

"Notwithstanding any inconsistent provisions of law, general,
special of 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 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 that statute 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." 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.

I point out that, prior to the enactment of the Freedom of Information Law, it was
held that 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)].

Since §89(6) of the Freedom of Information Law preserves rights of access conferred
by other statutes, I do not believe that the grounds for denial appearing in that law could be
cited to withhold what is available under §66-a.

Lastly, it has been held that an agency cannot limit the ability of the public to inspect
records to a period less than its regular business hours. By way of background, §89 (1)(b)(iii)
of the Freedom of Information Law requires the Committee on Open Government to
promulgate regulations concerning the procedural implementation of the Law (see 21
NYCRR Part 1401). In turn, §87 (1) requires agencies to adopt rules and regulations
consistent with the Law and the Committee's regulations.

Section 1401.2 of the regulations, provides in relevant part that:

"(a) The governing body of a public corporation and the head of an
executive agency or governing body of other agencies shall be
responsible for insuring compliance with the regulations herein, and
shall designate one or more persons as records access officer by name
or by specific job title and business address, who shall have the duty of
coordinating agency response to public requests for access to records.
The designation of one or more records access officers shall not be
construed to prohibit officials who have in the past been authorized to
make records or information available to the public from continuing to
do so..."

Section 1401.4 of the regulations, entitled "Hours for public inspection", states that:

"(a) Each agency shall accept requests for public access to
records and produce records during all hours they are
regularly open for business."

Relevant to the matter is a decision rendered by the Appellate Division, Second
Department, which includes Suffolk County. Among the issues was the validity of a
limitation regarding the time permitted to inspect records established by a village pursuant to
regulation. The Court held that the village was required to enable the public to inspect
records during its regular business hours, stating in part that:

"...to the extent that Regulation 6 has been interpreted as
permitting the Village Clerk to limit the hours during which
public documents can be inspected to a period of time less than
the business hours of the Clerk's office, it is violative of the
Freedom of Information Law..." [Murtha v. Leonard, 620 NYS
2e 101 (1994), 210 AD 2d 411].

Notwithstanding the foregoing, I do not believe that a member of the public may
designate the date or dates on which he or she seeks to review records. If, for instance,
records will be in use by staff on a particular date or during a particular period of time, an
agency would not, in my view, be required to alter its schedule or work plan. In that
instance, the agency could offer a series of dates to the person seeking to inspect the records
in order that he or she could choose a date suitable to both parties. Similarly, if a request
involves a variety of items, while the applicant may ask that certain records be made
available sooner than others, I do not believe that he or she can require an agency to make
records available in a certain order. Again, the kinds of factors mentioned earlier in
conjunction with the time needed to respond to requests would be pertinent.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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