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FOIL-AO-16466

February 16, 2007

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 Suffolk County Police Department. Specifically, you requested a copy of the accident report relating to an accident in which you were involved. The Department provided a copy of the report after blacking out one line of information from the “Accident Description/Officer’s Notes” and the entire written statement of driver #2, who was arrested at the scene of the accident for driving while intoxicated. On appeal, the Department refused to provide an unredacted copy of the report, on the grounds that disclosure would interfere with a law enforcement investigation, and that disclosure would constitute an unwarranted invasion of personal privacy. In this regard, we offer the following comments.

First, we understand that as a result of this accident your insurance company has increased your premium, and that if you can provide information as to why this driver was subsequently “unarrested”, your premiums may be decreased. We further note that the accident report you were provided indicates “CLOSED (NON-CRIMINAL ONLY)”, and with respect to vehicle #2, apparent contributing factors are “alcohol involvement and unsafe speed.” Finally, we note that three of the four people involved in the accident were taken to the hospital, except driver #2, who was the only person whose statement is recorded in the report. No tickets were issued. However, as stated previously, the field report created on the same day indicates “OPERATOR #2 ARRESTED AND UNARRESTED ON DWI.”

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)]. Here, where the report itself indicates “OPERATOR #2 ARRESTED AND UNARRESTED ON DWI”, it doesn’t appear that there is any ongoing criminal investigation.
If that is so, the report should be made available in its entirety.

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 (j) of the Law. Accordingly, it is our opinion that both the Freedom of Information Law and §66-a would apply to require production of the report you requested in its entirety.

The court’s analysis of the matter in the above case, Scott, Sardano & Pomeranz, supra, is relevant here, because it states that an agency may withhold names and addresses of individuals from accident reports when they are sought for commercial or fund-raising 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. Because the reports were requested by a law firm seeking to contact accident victims and to solicit their business, 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 to an agency to redact anything from accident reports other than names and addresses when they are to be used for commercial or fund-raising purposes; there is nothing in the Court’s decision or in the statute that would authorize an agency to withhold, for example, driver #2's statement.

As we understand §66-a, there is nothing in that statute that would authorize an agency, such as the County, to withhold the items redacted from the copy provided to you, namely details from the officer’s notes and Driver #2's statement. Aside from the broad definition of the term “record” appearing in the Freedom of Information Law, we point out that it has been held that even photographs made during the course of an investigation of an accident and other records comprising a police department’s investigation of an accident are part of the accident report and are therefore available under §66-a of the Public Officers Law [see Fox v. New York, 28 AD 2d (1967); Romanchuk v. County of Westchester, 42 AD 2d 783, aff’d 34 NY 2d 906 (1973)].

In sum, it is our view, based on the language of the law and its judicial construction, that the accident report should have been made available to you in full.

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

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJ:tt

cc: Rachel C. Anello