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August 30, 2001

FOIL-AO-12917

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.

Dear

I have received your letter in which you sought guidance in your efforts in obtaining records
concerning a motor vehicle accident in which you were involved in the Town of Guilderland. You
indicated that the Town disclosed an accident report "with the teens names blacked out", and that
the teens' statements were withheld. You added that you were informed that the teens appeared in
Family Court in Saratoga County, but that you are unaware of whether they were charged with or
convicted of any violation or crime.

In this regard, I 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 Town employees, would in my 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. I 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
my 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
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 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. Certainly you, as one involved in the accident, would be a person "having an interest" in
the report in conjunction with the language of §66-a of the Public Officers Law.

As I understand §66-a, there is nothing in that statute that would authorize an agency, such
as a Town, to withhold details identifying those involved in an accident, irrespective of their ages.
Moreover, if the statements to which you referred are part of the accident report, I believe that they,
too, would be available under §66-a. 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 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 my view, be disclosed.

Insofar as the records sought are not part of an accident report, potentially relevant is
the initial ground for denial in the Freedom of Information Law, §87(2)(a), which pertains to records
that "are specifically exempted from disclosure by state or federal statute." One such statute is §784
of the Family Court Act, which states that:

"All police records relating to the arrest and disposition of any person
under this article shall be kept in files separate and apart from the
arrests of adults and shall be withheld from public inspection, but
such records shall be open to inspection upon good cause shown by
the parent, guardian, next friend or attorney of that person upon the
written order of a judge of the family court in the county in which the
order was made or, if the person is subsequently convicted of a crime,
of a judge of the court in which he was convicted."

Based on the foregoing, I believe that a court or a government agency may be precluded from
disclosing certain records.

If there was no arrest or charge and §784 of the Family Court Act does not apply, but the
teens appeared in Family Court nonetheless, §166 of the Family Court Act may be pertinent. That
provision states that:

"The records of any proceeding in the family court shall not be open
to indiscriminate public inspection. However, the court in its
discretion in any case may permit the inspection of any papers or
records. Any duly authorized agency, association, society or
institution to which a child is committed may cause an inspection of
the record of investigation to be had and may in the discretion of the
court obtain a copy of the whole or part of such record."

Since you were involved in the accident, you might suggest that your request to inspect
Family Court records would not be "indiscriminate" but rather would reflect your legal interest in
the matter.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Hon. Rosemary Centi, Town Clerk