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FOIL-AO-15915

April 20, 2006

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 concerning what you described as denial of your request to inspect and copy "records of all traffic violations issued to drivers in Ossining, New York for the last five years." You wrote that you were also informed that you cannot inspect notices of claims filed against the Village.

In this regard, I offer the following comments.

First, I am unaware of the manner in which records of traffic violations are kept or filed. To the extent that they can be located and retrieved with reasonable effort, I believe that your request would "reasonably describe" the records as required by §89(3) of the Freedom of Information Law. On the other hand, insofar as those records are kept or filed with other records and locating them would involve a review of hundreds or perhaps thousands of records individually, it is likely that your request would not meet that standard and could be rejected [see Konigsberg v. Coughlin, 68 NY2d 245 (1986)].

Second, to the extent that the Village maintains records of traffic violations that can be found with reasonable effort, 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. Four of the grounds for denial are in my opinion relevant in considering access to records involving traffic violations.

One of the grounds, §87(2)(b), permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." While an allegation concerning an individual's conduct could in my view and under appropriate circumstances be withheld as an unwarranted invasion of personal privacy, a finding of a violation which indicates that an individual has failed to comply with law, i.e., by means of the issuance of a traffic ticket, would in my opinion result in a permissible invasion of one's privacy when disclosed.

Also of significance is §87(2)(g), which permits 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.

The issuance of citations or summonses indicates that a violation has been found. I believe that such a finding would consist of "factual" information accessible under §87(2)(g)(i), as well as a final agency determination accessible under §87(2)(g)(iii).

The remaining ground for denial of potential relevance is §87(2)(e), which states that an agency may 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."

The language quoted above is based upon potentially harmful effects of disclosure and is generally cited in the context of criminal law enforcement. From my perspective, the effects of disclosure described in §87(2)(e) would rarely, if ever, arise in relation to traffic summonses. Further, it is questionable, in my view, whether the records in question could be characterized as having been "compiled for law enforcement purposes." Even if they could be so characterized, it does not appear that any of the harmful effects described in subparagraphs (i) through (iv) of §87(2)(e) would arise by means of disclosure.

Lastly, in a case involving a request by a newspaper for speeding tickets issued by the State Police, the Court of Appeals held that the records must be disclosed, unless they were sealed pursuant to §160.50 of the Criminal Procedure Law [see Johnson Newspapers v. Stainkamp, 61 NY 2d 958 (1984)]. When records are sealed, they fall within §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute.

Based upon the foregoing, unless sealed under the Criminal Procedure Law, the records indicating traffic violations are in my view available under the Freedom of Information Law, for I do not believe that any of the grounds for denial could appropriately be asserted to withhold those records.

With respect to notices of claim, §50-f of the General Municipal Law provides specific direction concerning the maintenance of certain records pertaining to litigation. That provision states in relevant part that:

"Wherever a notice of claim is required by section fifty-e of this chapter as a condition precedent to the commencement of an action or proceeding against a municipal corporation or any authority or commission heretofore or hereafter continued or created by the public authorities law, or any officer, appointee or employee thereof, every such municipal corporation and every such authority or commission shall make and keep a record, numbered consecutively and indexed alphabetically according to the name of the claimant, of each notice of claim filed in compliance with such requirement and of the disposition of the claim so noticed...The record shall be made and kept by an officer or employee designated for that purpose by the by the governing body of such municipal corporation or of such authority or commission...The record of each claim shall be preserved for a period of five years after the date of the final disposition thereof."

In my view, an index referring to notices of claim must be disclosed. It is possible, however, that portions of notices of claim themselves may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy. That may be so when a notice of claim describes a medical condition or injury or contains an unsubstantiated allegation against a public officer or employee.

If a lawsuit is initiated after a notice of claim has been filed and records are publicly available from a court, I believe that copies of those records maintained by a municipal agency would be accessible under the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Mary Ann Roberts