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FOIL-AO-13463

July 16, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you raised questions concerning access to court records and the name of a person residing in a certain rent controlled apartment in New York City.

In this regard, first, with respect to your inquiries concerning court records, it is emphasized that the Freedom of Information Law, the statute within the advisory jurisdiction of this office, pertains to agency records, and that §86(3) of that statute defines the term "agency" to include:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

In turn, §86(1) defines the term "judiciary" to mean:

"the courts of the state, including any municipal or district court, whether or not of record."

Based on the foregoing, the Freedom of Information Law does not pertain to the courts or court records. This is not to suggest that court records are confidential; on the contrary, court records in many instances must be made available by the court or court clerk. In the case of a Surrogate's Court, §2501 of the Surrogate's Court Procedure Act states in relevant part that:

"1. The clerk of the court shall keep a record of and be responsible for the proper indexing, filing or recording, as the case may be, collating, arranging, restoring and preserving of all records, documents, books, maps, instruments and other matter specified in this article or by other requirement of law heretofore or hereafter deposited, filed or recorded, of all matters specified by this article or by other requirement of law...

8. All books and records other than those sealed are open to inspection of any person at reasonable times."

Therefore, insofar as records in which you are interested are maintained by a Surrogate's Court, I believe that they would be available, except to the extent that the records may be sealed. With regard to records maintained by other courts, the provision most generally applicable is §255 of the Judiciary Law. To seek records from a court, it is suggested that you contact of the clerk of the court in which the records are filed and that you provide sufficient detail in a written request to enable court personnel to locate the records of your interest.

Second, I do not believe that a government agency would be required to disclose the name of a person currently residing in a certain apartment. If an agency maintains a record containing that information, the Freedom of Information Law would be pertinent. In brief, that statute 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 would likely enable an agency to deny access to the name of a tenant.

While I am not an expert on the subject, I believe that rent control functions are now under the aegis of the State Division of Housing and Community Renewal. If that is so, the initial ground for denial, §87(2)(a) would appear to apply. That provision pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, §8632-a(b) of the Unconsolidated Laws, a section within the Emergency Tenant Protection Act, states that: "Registration pursuant to this section shall not be subject to the freedom of information law, provided that registration information relative to a tenant, owner, lessor or subtenant shall be made available to such part or his authorized representative." In short, records concerning a tenant in a rent controlled building are, based on the foregoing, available only to the tenant or his or her representative.

Aside from the provision referenced above, §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy." In my view, that exception would ordinarily serve to enable an agency to withhold the identity of a tenant in an apartment building.

 

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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