ALBANY, N.Y. The state Department of Transportation must honor a Freedom of Information Law request from the Long Island newspaper Newsday and detail downstate’s most dangerous intersections and what the state is doing to make them safer, a state appeals court ruled yesterday.
Meanwhile, the state’s highest court decided yesterday it would hear an appeal in the New York Times’ FOIL lawsuit for telephone transcripts and other records related to Sept. 11, 2001, from the New York Fire Department.
Newsday’s attempt to get records the DOT is required to keep under the federal highway Hazard Elimination Program was rebuffed by the state agency, which argued the state FOIL allows it to withhold information that is exempted from disclosure under federal law. The DOT said the dangerous roadway information is just such data.
But a panel of the Appellate Division of the state Supreme Court in Albany rejected that reasoning yesterday.
It ruled 5-0 in Newsday Inc. v. State Department of Transportation that the federal statute cited by the DOT was designed to prevent states from increasing their exposure in liability litigation filed on behalf of people killed or injured in auto mishaps within the dangerous intersections. It cannot be invoked in the Newsday case, where “the information is sought by a newspaper that is not engaged in a court proceeding involving an accident occurring at a location mentioned in such data,” the court said.
In general terms, the appellate division said FOIL is designed to “further a policy of governmental transparency” and any exceptions must be “interpreted narrowly.”
Specifically, Newsday is seeking DOT records on the most dangerous intersections and other road locations where accidents occur most frequently in New York City and on Long Island. The paper also wants details about the DOT’s work on making those roads safer or plans to do so.
Newsday lawyer Stephanie Abrutyn said release of the information, available in more than a dozen other states, would ultimately result in safer roads.
“Given that there never seems to be enough funds to make all of the improvements and all of the fixes that everyone would like to see made on the roads in any given year, public oversight on the decisions being made on where to direct our resources can ensure that they are being put to the best use,” Abrutyn said.
There was no immediate response from the DOT.
Meanwhile, the Court of Appeals agreed yesterday to hear the New York Times’ bid to obtain Sept. 11-related information from the New York Fire Department. A lower court in January ordered the NYFD to comply to some extent with the newspaper’s FOI request. The Times is seeking tapes of emergency telephone calls, internal department radio calls and the transcripts of interviews the department conducted with personnel about their experiences on the day terrorist knocked down the World Trade Center towers with hijacked passenger jets.
The lower court did say the fire department personnel’s opinions and recommendations should not be released along with the other materials. The court said those are protected under confidentiality or intra-agency records exemptions under FOIL.
The families of nine people killed on Sept. 11 have joined the case and are seeking the additional records. They argued that the fullest possible picture of what happened on Sept. 11 has to be known.
David McCraw, counsel for the New York Times Co., said that while the Times is not “dissatisfied” with lower court directives in the case, it wants the material it is seeking produced by the fire department without information deleted.
“It is our belief that the materials should be released in whole,” McCraw said.
Some of the material has been disclosed to the Times from confidential sources, but non of it has yet been released by the NYFD, McCraw said.
Kate Ahlers, spokeswoman for the city’s corporation counsel’s office, said the case is an ongoing one and declined to comment.
The Port Authority of New York and New Jersey released thousands of pages of transcripts of emergency calls and other Sept. 11 materials last year.