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FOIL-AO-16091

July 31, 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 facts 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 request made to the County of Cattaraugus for an unredacted copy of a motor vehicle accident report. We note that in response to the initial request, you provided a copy of the accident report after having first blacked out the driver’s license identification number and the dates of birth. In this regard, we offer the following comments.

First, 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.

Second, 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.

The court’s analysis of the matter in the above case, Scott, Sardano & Pomeranz, supra, is relevant here, 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[2][b] and 89[2][b]).

Based on the narrowness of the ruling in Scott, Sardano & Pomeranz, supra, however, it is our opinion that the Court did not give permission for an agency to redact anything from accident reports other than names and addresses when they are to be used for commercial or fundraising purposes; there is nothing in the Court’s decision or in the statute that would authorize an agency to withhold the drivers’ license identification number and/or dates of birth.

We note that the Legislature recently amended §3-220 of the Election Law which requires complete disclosure of registration records, permitting an agency to withhold a voter’s driver’s license number and social security number. Without any corresponding amendment to §66-a of the Public Officers Law, it is our opinion that there is no such exception for such information to be redacted from accident reports.

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 or fundraising purpose.

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

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director

CSJ:jm