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March 2, 1998




Mr. Leroy Moore
85-D-0050
Pouch #1
Woodbourne, NY 12788

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. Moore:

I have received your letter of January 30. You have sought guidance
in your efforts to obtain records, including grand jury minutes, from the Office
of the Albany County Clerk.

In this regard, I point out that the statute within the Committee's
advisory jurisdiction, the Freedom of Information Law, is applicable to agency
records, and that §86(3) 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 provisions quoted above, the courts and court records
are not subject to the Freedom of Information Law. This is not to suggest
that court records are not generally available to the public, for other
provisions of law (see e.g., Judiciary Law, §255) may grant broad public
access to those records. Even though other statutes may deal with access to
court records, the procedural provisions associated with the Freedom of
Information Law (i.e., those involving the designation of a records access
officer or the right to appeal a denial) would not ordinarily be applicable.
As you may be aware, county clerks perform a variety of functions,
some of which involve county records that are subject to the Freedom of
Information Law, others of which may be held in the capacity as clerk of a
court. If your request involves records maintained by the County Clerk in his
capacity as court clerk, the Freedom of Information Law, in my opinion,
would not apply.

It is also noted that the first ground for denial in the Freedom of
Information Law, §87(2)(a), pertains to records that "are specifically
exempted from disclosure by state or federal statute". One such statute,
§190.25(4) of the Criminal Procedure Law deals with grand jury proceedings
and provides in relevant part that:

"Grand jury proceedings are secret, and no
grand juror, or other person specified in
subdivision three of this section or section
215.70 of the penal law, may, except in the
lawful discharge of his duties or upon written
order of the court, disclose the nature or
substance of any grand jury testimony,
evidence, or any decision, result or other
matter attending a grand jury proceeding."

As such, grand jury minutes would be outside the scope of rights conferred
by the Freedom of Information Law. Any disclosure of those records would
be based upon a court order or perhaps a vehicle authorizing or requiring
disclosure that is separate and distinct from the Freedom of Information Law.

I hope that the foregoing serves to enhance your understanding of the
matter and that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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