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FOIL-AO-16025

June 15, 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

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a recent New York State Police policy change. As reported on the New York State police website:

"As of May 15, 2006, requests for copies of Police Accident Reports of collisions investigated by the State Police that occurred on the New York State Thruway (I-87 South of Albany, I-90 West of Albany & Berkshire Spur) and its subsidiary arterials (I-84, I-190) must be made to Troop T Headquarters.

"All requests for copies of Police Accident Reports of collisions investigated by the State Police that occurred on roads or highways other than the Thruway must be made to the New York State Department of Motor Vehicles (DMV) Certified Documents Section. The form for requesting a copy of an Police Accident Report (MV-198-C) is available on the DMV website, www.nysdmv.com, and linking to "DMV Forms and Publications," then link to "All DMV Forms."

"Note: New York State Police Accident Reports are sent electronically to DMV, and are available within two weeks of the collision. Police Accident Reports submitted to DMV by other departments may not be available as soon. Motorists requesting a copy of a Police Accident Report relative to an collision that was investigated by a department other than the State Police should follow the DMV guidelines on the DMV form MV-198C."

Based on the foregoing, the State Police are now requiring that all requests for reports pertaining to accidents which occurred on the New York State Thruway be directed to one address, and all other requests be directed to the Department of Motor Vehicles ("DMV"). We note that the last sentence of the third paragraph seems to indicate that reports pertaining to accidents which were investigated by local policies agencies should also be directed to DMV.

Insofar as the new provisions direct requests to DMV, it is your contention that this will "result in delays of several months" based on your experience that accident reports are not available from DMV for three months after the accident date. The form utilized by DMV for requesting copies of accident reports, Form MV-198C, and the accompanying instructions, indicate "Copies of all accident reports are not available until 3 months after the accident date; accident reports from the New York State Police may be available sooner."

In this regard, we 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. Accident reports kept or maintained by the State Police or the police department of any county, city, town or village are governed by§66-a of the Public Officers Law, which was enacted in 1941 and states that:

"Notwithstanding any inconsistent provisions of law, general, special or 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."

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.

Section 66-a permits the custodian of such accident reports to prescribe reasonable rules and regulations regarding the time and manner of access to the records. Similarly, the Committee on Open Government has been directed by the Legislature to promulgate rules and regulations with respect to access to agency records (Public Officers Law §89[1][b]). Because the Freedom of Information Law requires "each agency" to promulgate conforming rules and regulations (Public Officers Law §87[1][b]), the Committee has created, and makes model regulations available for adoption by local agencies.

We note that §86(3) of the Freedom of Information Law defines the term"agency " to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Further, the Legislature consistently directs "each agency" to comply with the Freedom of Information Law, as opposed to permitting one agency to answer requests on behalf of others. "Each agency" is required, "in accordance with its published rules, [to] make available for public inspection and copying all records, except..." (§87[2][g]). "Each agency shall maintain: (a) a record of the final vote of each member in every agency proceeding in which the member votes..." (§87[3]), and §89(3) "[e]ach entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of the request...". Accordingly, it is our opinion that all local offices of the State Police and the State Police as a whole cannot shift the burden of compliance with the Freedom of Information Law to another agency. Through the language of Public Officers Law, §66-a, the Legislature has made clear its intent that each agency "may prescribe reasonable rules and regulations" regarding the time and manner of access to records (emphasis added). In this respect, we agree with your observation that shifting the burden of providing access to records from each local office of the State Police to Troop T Headquarters and/or from the State Police to DMV would not be reasonable.

Deferring requests away from local agencies and/or to the DMV and thus imposing a three month waiting period, when records are available elsewhere, in our view, is unreasonable in light of the Legislature’s recent amendments to the time limits for responding to requests expressed in the Freedom of Information Law. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."

It is noted that new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:

"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."

Based on the foregoing, each agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. If it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, however, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.

The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit and agency to defer its responsibilities to another agency thereby increasing the response time frame. From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and as indicated in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

"The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.

Notwithstanding the foregoing, in our view, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Therefore, if records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a lengthy delay in disclosure. As the Court of Appeals has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

In our opinion, if, as a matter of practice or policy, an agency acknowledges the receipt of requests and indicates in every instance that it will determine to grant or deny access to records within a particular period following the date of acknowledgement, such a practice or policy would be contrary to the thrust of the Freedom of Information Law. If a request is voluminous and a significant amount of time is needed to locate records and review them to determine rights of access, a delay beyond five business days, in view of those and perhaps the other kinds of factors mentioned earlier, might be reasonable. On the other hand, if a record or report is clearly public and can be found easily, there would appear to be no rational basis for delaying disclosure. In a case in which it was found that an agency's "actions demonstrate an utter disregard for compliance set by FOIL", it was held that "[t]he records finally produced were not so voluminous as to justify any extension of time, much less an extension beyond that allowed by statute, or no response to appeals at all" (Inner City Press/Community on the Move, Inc. v. New York City Department of Housing Preservation and Development, Supreme Court, New York County, November 9, 1993).

In sum, because there will be instances in which the State Police can and should respond without undue delay to requests, it is our opinion that delaying disclosure is unreasonable. Similarly, it is our opinion that to defer all requests for records pertaining to accidents occurring off the New York State Thruway to DMV would only serve to unreasonably delay access to those records.

Finally, we note that the Department of Motor Vehicles, like the State Police, is authorized by statute to charge a fee for searching for records. Local police agencies have authority to charge only $.25 per photocopy pursuant to §87(1)(b)(iii). To defer requests made pursuant to the Freedom of Information Law from local police agencies to the DMV would, therefore, in our opinion unreasonably increase the cost of gaining access to records.

On behalf of the Committee on Open Government we hope this is helpful to you.

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director

CSJ:jm
cc: Bill Butler
Glenn Valle