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August 16, 1993

Mr. Christopher McNamara
208 Spring Street
Ossining, N.Y. 10562

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 Mr. McNamara:

I have received your letter of August 7 and the materials
attached to it.

According to your letter, it is your understanding the
Ossining Village Manager was involved in a car accident near
Albany, and that his vehicle was repaired and "given over to the
police department." Consequently, you requested copies of the
motor vehicle accident report "concerning this Village-owned
vehicle" and the bill of sale pertaining to the purchase of a new
car "which should clearly indicate the options this vehicle was
purchased with and the bottom line cost figure of said vehicle."
In addition, you asked for the odometer reading at the time of the
accident.

In response to the request, you were informed that the Village
Manager does not have a copy of the accident report and that you
should request the report from the police department that prepared
it. Further, it appears to be your view, or perhaps that of
Village officials, that an accident report can only be released to
or with the consent of a person involved in the accident.

In this regard, I 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, if the Village or the Village Manager
maintains the records in which you are interested, I believe that
those records must be disclosed by the Village to the extent
required by law. If the Village and/or the Village Manager do not
maintain a copy of the accident report, you could seek the report
either from the police department that prepared it or from the
Department of Motor Vehicles.

Second, except in unusual circumstances, accident reports
prepared by police agencies are in my 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 of 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 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.
Assuming that the Village maintains a record indicating the
odometer reading of the damaged vehicle at the time of the
accident, as well as a bill of sale or similar or related records
reflective of the nature of a new vehicle and the expenditure of
public moneys, those records in my view would be available. In
short, the grounds for denial are limited, and none would appear to
be applicable with respect to those records.

Lastly, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. 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 when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision 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."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, 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 [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Gennaro Faiella, Village Manager
Marie Fuesey, Clerk