August 9, 1995



Mr. John B. Dearstyne
Supervisor Records Management
NYS Department of Transportation
State Campus
Albany, NY 12232

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 Mr. Dearstyne:

I have received your letter of August 4. You have requested an advisory opinion concerning public rights of access to a form used by the Department of Transportation, a "Report of Damage to State Property." It is my understanding that the form is completed when state property is damaged by "other than State-owned vehicles or equipment", i.e., when a privately owned vehicle runs into and damages a guardrail along a state highway. You enclosed a sample of the form that is the subject of your inquiry.

In this regard, I offer the following comments.

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. From my perspective, two of the grounds for denial are pertinent to an analysis of the matter. Neither, however, would in my view justify a denial of access.

Relevant is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Although that standard may involve the making of subjective judgments, the nature of the events to which the forms in question relate and the availability of similar records in my view indicate that the forms must be made available on request. First, the event, which is characterized on the form as an accident, occurs in a public place and may be seen by passersby. Second, the event is investigated at the scene by a government official, presumably a law enforcement officer, such as a state trooper. When that occurs, particularly if lights are flashing or markers are used to inform other motorists to use caution, the accident essentially becomes a public event. Assuming that the vehicle involved in the accident has a New York State license plate, any person could note the plate number and obtain from the Department of Motor Vehicles registration information that identifies the owner of the vehicle as well as license and driving records pertaining to any licensed driver in the State (see Vehicle and Traffic Law, §§202 and 508). It is also noted that similar records are available from most other jurisdictions, like New York, upon payment of the requisite fee. Further, a motor vehicle accident report, form MV-104, which includes information analogous to that appearing in the form in question, is available pursuant to Vehicle and Traffic Law, §202, Public Officers Law, §66-a and the Freedom of Information Law [see Scott, Sardano & Pomeranz v. Records Access Officer, City of Syracuse, 65 N.Y. 2d 294 (1985)]. In short, the personal information on the form pertaining to the owner or driver of the vehicle could be obtained from other sources by the public generally. That being so, I do not believe that disclosure of the form would constitute in an unwarranted invasion of personal privacy. Moreover, when an accident involves a commercial vehicle, as in the case of the sample that you enclosed, the content of the form could not be characterized in my opinion as "personal"; rather, in that instance, it would pertain to a commercial entity and a person, the driver, acting in a business capacity. In that kind of situation, it has been found that the provisions concerning privacy are not applicable (see Newsday, Inc. v. NYS Department of Health, Supreme Court, Albany County, October 15, 1991).

The other ground for denial of relevance is §87(2)(g), which permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld. As I understand its contents, the form consists entirely of "statistical or factual" information that would be available under §87(2)(g)(i).

For the reasons expressed in the preceding commentary, I believe that the records at issue are accessible under the Freedom of Information Law.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director