January 24, 1995
Mrs. Cynthia Rekemeyer
5 Ridge Terrace
Albany, NY 12205
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 Mrs. Rekemeyer:
I have received your letter of December 13 and the materials attached to it.
According to your letter, you are the parent of a son who was killed in a motor vehicle accident in June of 1994 in the Town of Colonie. Having requested photographs taken at the scene of the accident, you were informed by an assistant town attorney that the photographs would be made available to you. Nevertheless, when you attempted to speak with her, you were told that the Town Attorney would deal with your request, and he denied access, apparently due to concern with respect to your mental state.
You have sought an advisory opinion on the matter. 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, written materials comprising an accident report, as well as photographs taken at the scene by Town employees, would in my opinion clearly constitute "records" subject to rights conferred by the Freedom of Information Law.
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. Certainly you, as mother of a deceased accident victim, would be a person "having an interest" in the report in conjunction with the language of §66-a of the Public Officers Law.
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 §87(2)(a) through (i) of the Law. Under the circumstances, it does not appear that any ground for denial could justifiably be cited to withhold the photographs in question from you.
Lastly, aside from the broad definition of the term "record" appearing in the Freedom of Information Law, I point out that it has been held that 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, based on the language of applicable statutes and the judicial interpretation of those statutes, I do not believe that the Town could assert any valid legal basis for denying access to the photographs.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Arnis Zilgme