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 FOIL-AO-14095

June 24, 2003

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 and the materials relating to it. You referred to two "opinions" that I prepared concerning access to certain records that "appear to be contradictory" and asked that I clarify my views on the matter.

By way of background, you indicated that you transmitted a request under the Freedom of Information Law to the New York State Department of Transportation (DOT) for records that identify hazardous intersections and locations in particular geographic areas. You added that the Department is required to maintain the records sought to comply with the federal "Hazard Elimination Program." The Department denied access based on 23 USC §409, which states that:

"Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway- highway crossings, pursuant to sections 130,144 and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data."

The Department has apparently contended that the records sought are exempt from disclosure based on the language quoted above when it is read in conjunction with §87(2)(a) of the Freedom of Information Law. That provision pertains to records that "are specifically exempted from disclosure by state or federal statute."

In a letter addressed to a DOT regional director in 1995, a communication that this office did not characterize as an advisory opinion, it was suggested that 23 USC §409 is a statute that exempts records from disclosure through the application of §87(2)(a). However, having reviewed that letter, it is clear that the suggestion offered involved a cursory review of the matter. More detailed and expansive is the advisory opinion rendered on December 1, 2000 and addressed to the Chief Counsel at DOT. In that opinion, it was suggested that the capacity to deny access under the federal statute is limited, and if that is so, that the records are subject to rights of access conferred by the Freedom of Information Law. Having considered the federal statute again and the intent of Congress, I believe that a request for the records pursuant to the Freedom of Information Law must be honored, and that rights of access should be determined by that law.

From my perspective, there is a clear distinction between rights of access conferred upon the public under the Freedom of Information Law and rights conferred upon a litigant via the use of discovery, and the courts have provided direction concerning the Freedom of Information Law as opposed to the use of discovery under the Civil Practice Law and Rules (CPLR) in civil proceedings and in criminal proceedings under the Criminal Procedure Law (CPL). The principle is that the Freedom of Information Law is a vehicle that confers rights of access upon the public generally, while the discovery provisions of the CPLR or the CPL are separate vehicles that may require or authorize disclosure of records due to one's status as a litigant or defendant.

As stated by the state's highest court, the Court of Appeals, in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. The Court in Farbman, supra, discussed the distinction between the use of the Freedom of Information Law as opposed to the use of discovery in Article 31 of the CPLR. Specifically, it was found that:

"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 governmental decision-making, its ambit is not confined to records actually used in the decision-making process (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d 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.

"CPLR article 31 proceeds under a different premise, and serves quite different concerns. While speaking also of 'full disclosure' article 31 is plainly more restrictive than FOIL. Access to records under CPLR depends on status and need. With goals of promoting both the ascertainment of truth at trial and the prompt disposition of actions (Allen v. Crowell-Collier Pub. Co., 21 NY 2d 403, 407), discovery is at the outset limited to that which is 'material and necessary in the prosecution or defense of an action'" [see Farbman, supra, at 80].

In sum, I believe that the Freedom of Information Law imposes a duty to disclose records, as well as the capacity to withhold them, irrespective of the status or interest of the person requesting them. To be distinguished are other provisions of law that may require disclosure based upon one's status, e.g., as a litigant, and the nature of the records or their materiality to a proceeding. The materials made available in discovery to a litigant through discovery may not be available to the public under the Freedom of Information Law. Conversely, there may be instances in which records are beyond the scope of discovery, but which may be available under the Freedom of Information Law.

The language of the federal statute indicates that the intent is to preclude the use of certain records in a litigation context, perhaps to the detriment of a government agency and, therefore, taxpayers. In a statement clarifying the intent of 23 USC §409 when it was minimally amended in 1995 by inserting the phrase "or collected" after "compiled", the Congressional Record states that:

"This section amends section 409 of title 23 to clarify that data 'collected' for safety reports on surveys shall not be subject to discovery or admitted into evidence in Federal or State court proceedings.

"This clarification is included in response to recent State court interpretations of the term 'data compiled' in the current section 409 of title 23. It is intended that raw data collected prior to being made part of any formal or bound report shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mention[ed] or addressed in such data."

H.R. Rep. 104-246 §328, at 59 (1995); see Act of Nov. 28, 1995, Pub. L. No. 104-59, 1995 U.S.C.C. AN. (109 Stat) 591.

If the records sought are disclosed under the Freedom of Information Law, they could not be obtained via discovery or used in a proceeding relating to an occurrence at a location mentioned in those records; a court, being informed of the direction provided in 23 USC §409, would be required to ensure that any such records are not used in the proceeding. That being so, the harm sought to be avoided by 23 USC §409 would be avoided. Concurrently, the public, by obtaining records under the Freedom of Information Law, would have the ability to know which locations may be most hazardous, thereby enabling drivers and others to use greater care and caution.

In my view, 23 USC §409 focuses on the use of the records sought. Unless and until you or any other person attempt to use those records in a litigation context as envisioned by that statute, I believe that they are subject to rights of access conferred by the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman Executive Director

RJF:tt

cc: William MacTiernan John Dearstyne