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Hazardous highway records again ordered released

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    News Media Update         NEW YORK         Freedom of Information    

Hazardous highway records again ordered released

  • Records identifying dangerous New York intersections and highway sites, as well as any scheduled repairs, are not exempt from public disclosure because of a federal law, a state appeals court ruled.

July 15, 2004 — Records that show hazardous intersections and other highway sites in New York City and Long Island, as well as any scheduled repairs or improvements, are not exempt from public disclosure under the New York Freedom of Information Law, a state appeals court panel ruled July 1.

Newsday sued the New York Department of Transportation for the records which states must compile in compliance with the federal highway Hazard Elimination Program. The law requiring the compilation prohibits the admission of the safety reports and surveys as evidence in a trial or during discovery. State agencies in New York and elsewhere have interpreted that rule as a prohibition against any disclosure of these reports.

The New York agency denied the magazine’s September 2002 open records request for the information. The transportation department argued that the records were exempt from disclosure because of the federal law.

In October a trial court in Albany, N.Y., ruled in the newspaper’s favor, saying the federal law did not act as an exemption under the state’s Freedom of Information Law. The transportation department immediately appealed.

“Inasmuch as the purposes of FOIL are to further a policy of governmental transparency and to protect the public’s right to know, any exemptions must be interpreted narrowly,” Judge Thomas Mercure wrote.

The federal statute prohibits disclosure of records “collected for the purpose of identifying, evaluating or planning the safety enhancement of potential accident sites . . . in any [legal] action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data.”

The bar on disclosure, therefore, is not applicable to material requested for a purpose other than litigation, Mercure wrote. The agency failed to meet its burden of proving its use of the exemption was narrowly tailored, he added.

“It is clear that Congress intentionally limited disclosure of hazard elimination data only to the extent necessary to ensure its exclusion from court proceedings involving accidents that occurred at locations addressed in that data,” Mercure held.

(Newsday, Inc. v. New York State Department of Transportation; Media Counsel: Stephanie S. Abrutyn, The Tribune Co., New York) AV

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