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March 29, 2001

FOIL-AO-12611

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 February 22, as well as the materials attached to it. You have
sought an advisory opinion concerning a request made under the Freedom of Information Law to the
New York City Police Department.

Although some aspects of your request were granted, others were denied. They include
"witness statements given to the police for all bicyclist fatalities [consequent to incidents involving
motor vehicles in NYC]" during a certain period, and analyses and related records "from which and
in which the NYPD determined whether and the extent to which, cyclist error was the primary
contributing factor in fatal cycling accidents..." With respect to the witness statements, you specified
in your appeal personally identifying details pertaining to witness could be deleted, and that the
analyses related to news articles citing statistical data offered by officials of the Police Department.

In this regard, I offer the following comments.

First, as you may be aware, 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, §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.
Insofar as the witness statements are part of motor vehicle accident reports, it is likely that they must
be disclosed in their entirety in most instances.

Of potential relevance to the matter is §66-a of the Public Officers Law, which 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.

If the witness statements are separate from accident reports, I believe that the Freedom of
Information Law would govern rights of access. If the only basis for withholding the statements
involves a finding that disclosure would constitute "an unwarranted invasion of personal privacy"
[see §87(2)(b)], personally identifying details could be deleted, and the remainder of those records
would be accessible [see §89(2)(b)]. Insofar as the statements relate to an ongoing criminal
investigation, §87(2)(e) may be pertinent, for that provision authorizes an agency to withhold records
that:

"are compiled for law enforcement purposes and which, if disclosed,
would:

i. interfere with law enforcement investigations or judicial
proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information
relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except
routine techniques and procedures."

From my perspective, only those portions of the statements which if disclosed would result
in the harmful effects described in subparagraphs (i) through (iv) would the Department have the
authority to deny access; the remainder of the records would be accessible.

Lastly, with regard to the analyses and related records that you requested, it appears that the
only ground for denial of significance would be §87(2)(g). Although that provision potentially
serves as a means of withholding records, due to its structure, it may require substantial disclosure.
Specifically, §87(2)(g) enables an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

One of the contentions offered by the New York City Police Department in a decision
involving that provision was that certain reports could be withheld because they are not final and
because they relate to incidents for which no final determination had been made. The state's highest
court, the Court of Appeals, rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up
reports are exempt from disclosure because they constitute nonfinal
intra-agency material, irrespective of whether the information
contained in the reports is 'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers
Law §87[2][g][111]). However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does not apply as long as the
material falls within any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that contain 'statistical or
factual tabulations or data' are subject to FOIL disclosure, whether or
not embodied in a final agency policy or determination (see, Matter
of Farbman & Sons v. New York City Health & Hosp. Corp., 62
NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..."
[Gould et al. v. New York City Police Department, 87 NY2d 267,
276 (1996)].

The Court also dealt with the issue of what constitutes "factual data" that must be disclosed
under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the
meaning of the term can be discerned from the purpose underlying the
intra-agency exemption, which is 'to protect the deliberative process
of the government by ensuring that persons in an advisory role [will]
be able to express their opinions freely to agency decision makers'
(Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132
[quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546,
549]). Consistent with this limited aim to safeguard internal
government consultations and deliberations, the exemption does not
apply when the requested material consists of 'statistical or factual
tabulations or data' (Public Officers Law 87[2][g][i]. Factual data,
therefore, simply means objective information, in contrast to
opinions, ideas, or advice exchanged as part of the consultative or
deliberative process of government decision making (see, Matter of
Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on
op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson,
68 AD2d 176, 181-182).

"Against this backdrop, we conclude that the complaint follow-up
reports contain substantial factual information available pursuant to
the provisions of FOIL. Sections of the report are devoted to such
purely factual data as: the names, addresses, and physical descriptions
of crime victims, witnesses, and perpetrators; a checklist that
indicates whether the victims and witnesses have been interviewed
and shown photos, whether crime scenes have been photographed and
dusted for fingerprints, and whether neighborhood residents have
been canvassed for information; and a blank space denominated
'details' in which the officer records the particulars of any action taken
in connection with the investigation" (id., 276-277)

I note, too, that it has been held that factual information appearing in narrative form, as well
as those portions appearing in numerical or tabular form, is available under §87(2)(g)(i). For
instance, in Ingram v. Axelrod, the Appellate Division held that:

"Respondent, while admitting that the report contains factual data,
contends that such data is so intertwined with subject analysis and
opinion as to make the entire report exempt. After reviewing the
report in camera and applying to it the above statutory and regulatory
criteria, we find that Special Term correctly held pages 3-5
('Chronology of Events' and 'Analysis of the Records') to be
disclosable. These pages are clearly a 'collection of statements of
objective information logically arranged and reflecting objective
reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance
records, list of interviews) should be disclosed as 'factual data'. They
also contain factual information upon which the agency relies (Matter
of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve
to app den 48 NY2d 706). Respondents erroneously claim that an
agency record necessarily is exempt if both factual data and opinion
are intertwined in it; we have held that '[t]he mere fact that some of
the data might be an estimate or a recommendation does not convert
it into an expression of opinion' (Matter of Polansky v Regan, 81
AD2d 102, 104; emphasis added). Regardless, in the instant
situation, we find these pages to be strictly factual and thus clearly
disclosable" [90 AD 2d 568, 569 (1982)].

In short, even though statistical or factual information may be "intertwined" with opinions,
the statistical or factual portions, if any, as well as any policy or determinations, would be available,
unless a different ground for denial [i.e., §§87(2)(b) or (e)] could properly be asserted.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: William Tesler