Dwyer, Application of

• Court: New York Supreme Court
• Writing for the Court: SAMUEL A. SPIEGEL
• Citation: Dwyer, Application of, 378 N.Y.S.2d 894, 85 Misc.2d 104 (N.Y. Sup. Ct. 1975)
• Decision Date: 15 December 1975
• Parties: Application of Edward DWYER to examine certain records of the Fire Department of the City of New York.

Page 894

378 N.Y.S.2d 894

85 Misc.2d 104

Application of Edward DWYER to examine certain records of the Fire Department of the City of New York.

Supreme Court, Special Term, New York County, Part I.

Dec. 15, 1975.

William Rosenthal, Standard, Weisberg, Heckerling & Rosow, New York City, for petitioner.

W. Bernard Richland, Corp. Counsel, New York City (Jack Cherrill, New York City, of counsel), for respondent.

SAMUEL A. SPIEGEL, Justice:

This is an application to permit petitioner, or his representative, to inspect certain records of the Fire Department of the City of New York.

While in the employ of the New York Telephone Company on March 30, 1975 petitioner was injured in a flash fire explosion as he was entering the underground telephone system on Madison Street, New York City. The Fire Department made an investigation of the cause of the fire which resulted in a report (see Administrative Law Sections 488(2)--1.0--3.0). However, when petitioner, by his representative, attempted to obtain a copy of these records, specifically the 'Chief's Report', he could not do so without signing an affirmation that a notice of claim was not filed, that one would not be filed, and that a cause of action was not and would not be brought against the City of New York. The effect thereof was to deny petitioner a privilege afforded any other person. In opposition, the argument presented by the City is that petitioner is seeking to determine if there is a cause of action against the City which it asserts cannot be done.

The law with respect to the discovery and inspection of public records has been expanded to conform with the more liberal trend and the federal Freedom of Information Act (5 U.S.C., § 552; New York Public Officers Law, Article 6 (Freedom of Information Law)). Formerly the state statute only related to the Police reports (Public Officers Law Section 66--a) and records in public office where secrecy is not required (Public Officers Law, Section 66). Even under these more restrictive statutes the intent was to make the public information available whether or not the information led to prosecution (Matter of New York Post Corp. v. Leibowitz, 2 N.Y.2d 677, 163 N.Y.S.2d 409, 143 N.E.2d 256; Matter of Werfel v. Fitzgerald, 23 A.D.2d 306, 260 N.Y.S.2d 791; Alberghini v. Tizes, 68 Misc.2d 587, 328 N.Y.S.2d 272) and unless the records were confidential (Matter of Cherkis v. Impellitteri, 307 N.Y. 132, 120 N.E.2d 530).

The Freedom of Information Law does not abolish the prior and common law privilege for official information (Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113, 117, 359 N.Y.S.2d 1, 4, 316 N.E.2d 301, 303) but the use of the privilege requires more than a mere assertion thereof. It requires a determination of the public interest (Id. at 118--119, 359 N.Y.S.2d at 4--6, 316 N.E.2d at 303--304). While the Court of Appeals, therein, refused to permit the discovery from a nonparty witness of the records, information and witnesses before the Board of Inquiry, with respect to the explosion at 80 Pine Street on May 3, 1972, it did so on the basis that plaintiff failed to meet the discovery requirements of the CPLR of 'adequate special circumstances' (Id. at 117, 359 N.Y.S.2d at 4, 316 N.E.2d at 303; CPLR 3101(a)(4)). Herein, the issue is one of acquisition of a public record.

Pursuant to Section 88, subdivision (1)(a) of the Public Officers Law the report in question is discoverable. However, although the City does not dispute the availability of that report in general circumstances, it states that the adversary nature of the proceeding and the possibility of litigation allegedly prevents the discovery. Those factors are not effective. Even under the prior law a police accident report could not be withheld if the state, municipal corporation or subdivision thereof were involved in the accident (Public Officers Law, Section 66--a). By the Freedom laws (state statutes which are similar to our Freedom of Information Law and also called Sunshine Laws) accident reports (Moore-McCormack Lines, Inc. v. ITO Corp. of Baltimore, 4 Cir., 508 F.2d 945; Machin v. Zuckert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. den., 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124, appeal after remand 118 U.S.App.D.C. 410, 336 F.2d 914), autopsy reports (Denver Publishing Co. v. Dreyfus, 520 P.2d 104 (Sup.Ct.Colorado)), and written appraisal reports (Gannett Co., Inc. v. Goldtrap, 302 So.2d 174 (Fla.App.2d)) are discoverable.

Basically the intent...