NY.gov Portal State Agency Listing

 

August 29, 2000

FOIL-AO-12302

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

As you are aware, I have received your letter and the materials relating to it in which
you described ongoing difficulties in obtaining motor vehicle accident reports from the
Nassau County Police Department. The County has continually denied access to the reports,
citing §66-a of the Public Officers Law, stating that "you are not an interested party." You
added that Police Department officials are familiar with opinions prepared by this office on
the subject and that they disagree with them.

In this regard, the opinions rendered by the Committee on Open Government are
based on the language of applicable statutes and judicial decisions. In this instance, essence
of the issue was determined by the Court of Appeals, the state's highest court. While it is our
hope that opinions rendered by this office are influential and educational, there is no
requirement that government agencies heed those opinions. The issue in this case, however,
was considered directly by the Court of Appeals, and in my view, a government agency
cannot justifiably ignore the direction provided in its determination.

By way of background, 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, including
photographs taken at the scene, would in my opinion clearly constitute "records" subject to
rights conferred by the Freedom of Information Law.

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.

Second, §66-a of the Public Officers Law has required the disclosure of accident
reports, except to the extent that their release would interfere with a criminal investigation,
since its enactment in 1941. You indicated that the report in which you are specifically
interested relates to a closed case "that did not result in an arrest, or criminal charges being
filed." As such, the exception to rights of access conferred by §66-a would not be applicable
or pertinent.

Subdivision (1) of §66-a 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 prosecution by such
authorities of a crime involved in or connected with the
accident" (emphasis mine).

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."

Third and most importantly, the Court of Appeals directly addressed the meaning of
the phrase that is italicized and upon which the Police Department has relied in restricting
access. Specifically, the Court found 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.

Lastly, aside from the broad definition of the term "record" appearing in the Freedom
of Information Law, I point out that it has been held that records other than an MV-104
prepared during the course of an investigation of an accident are considered 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, based on the direction given by the state's highest court, I believe that your
status as a member of the public provides you with rights of access to records under both
§66-a of the Public Officers Law and the Freedom of Information Law.

In an effort to enhance compliance with and understanding of applicable law, copies
of this opinion will be forwarded to County officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: William J. Willett, Commissioner of Police
John G. Kennedy, Second Deputy Commissioner
Bruce Duryee, Detective Sergeant
Officer Berry, Legal Bureau