June 27, 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, except as otherwise indicated.
We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to requests made to the County of Orange for reports pertaining to motor vehicle accidents involving County owned vehicles. Additionally, we have received a copy of the County’s denial of your appeal to release unredacted copies of the reports. We generally agree with your assessment of the current state of the law, which in our opinion requires the County to disclose the reports. In this regard, we 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, because the County maintains the records which you have requested, we believe that those records must be disclosed by the County to the extent required by law.
Second, except in unusual circumstances, accident reports prepared by police agencies are in our 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 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 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.
Third, as a general matter, 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 section 87(2)(a) through (i) of the Law. Accordingly, it is our opinion that both the Freedom of Information Law and §66-a laws would apply to require production of those records.
We note that the County relies on two judicial decisions and various advisory opinions of the Committee on Open Government that appear, at first glance, to support its position that certain elements of information may be redacted from the accident reports. As we understand §66-a and the case law, however, there is nothing in that statute that would authorize an agency, such as a County, to withhold names and addresses of persons involved in accidents, the type and nature of any injuries sustained, or the identities, ages or genders of any other individuals who were injured in the accident.
Unlike the factual situation here, the first case upon which the County relies, Goyer v. Dept of Environmental Conservation, (Supreme Court, Albany County, November 29, 2005), involved a request for registration information for all licensed hunters issued deer management permits during the preceding year. Because there was and is no statutory requirement that the permit applications discussed in Goyer be disclosed, the analysis does not directly apply.
The analysis set forth in the second case, Scott, Sardano & Pomeranz, supra, is pertinent because it permits the agency to withhold names and address of individuals from accident reports when they are sought for commercial or fundraising purposes, based on the exception set forth in §87(2)(b), which permits an agency to withhold information which if released would constitute an unwarranted invasion of personal privacy. Accordingly, the court directed the City to delete names and addresses of the victims before making the reports available (see §§ 87[b] and 89[b]).
Based on the ruling in Scott, Sardano & Pomeranz, supra, however, it is our opinion that the Court did not give permission for an agency to redact the names of any persons involved in an accident prior to disclosure, unless those names and addresses are to be used for commercial or fundraising purposes. We reiterate, there is nothing in the Court’s decision or in the statute that would authorize an agency to withhold the names and addresses of any persons involved in an accident based on their employment with the County or any other government agency. We do not believe that the law would permit redaction of signatures on the reports, and/or the ages or genders of individuals injured in the accident, nor do we believe that the names and home addresses of individuals involved in accidents may be redacted, except when disclosure is for a commercial or fundraising purpose.
Finally, to the extent that the County has redacted information pertaining to injuries sustained in the course of an accident, we note the court’s ruling in Beyah v. Goord (309 AD2D 1049, 766 NYS2d 222, 225 [3rd Dept, 2003]). In Beyah, the court held that there is no unwarranted invasion of personal privacy with respect to the release of an incident report that includes notations "which describe the general nature of the .... injuries sustained in the incident" because such disclosure does not reveal details of any existing medical condition, and therefore, cannot reasonably be considered a material part of an individual’s medical history.
In sum, it is our view, based on the language of the law and its judicial construction, that motor vehicle accident reports must be disclosed in their entirety, except in two circumstances: the first would involve a situation in which portions may be withheld because disclosure would "interfere with the investigation or prosecution...of a crime involved in or connected with the accident; and the second with a situation in which accident victims’ names and addresses are sought for a commercial purpose.
On behalf of the Committee on Open Government we hope this is helpful to you.
Camille S. Jobin-Davis
cc: David L. Darwin