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December 21, 1998

Ms. Iwona Muszak
66 Reddick Lane
Rochester, NY 14624

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 Ms. Muszak:

As you are aware, I have received your letter of November 15. You have sought
assistance in obtaining records from the Commission on Judicial Conduct in relation to a
complaint that you made concerning a certain town justice.

In this regard, in brief, the Freedom of Information Law 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.

Relevant in this instance is §87(2)(a), which pertains to records that "are specifically
exempted from disclosure by state or federal statute." One such statute is §45 of the Judiciary
Law, which deals with records of the Commission on Judicial Conduct and is entitled
"Confidentiality of records." Subdivision (1) of that statute provides that:

"Except as hereinafter provided, all complaints,
correspondence, commission proceedings and transcripts
thereof, other papers and data and records of the commission
shall be confidential and shall not be made available to any
person except pursuant to section forty-four of this article, the
commission and its designated staff personnel shall have
access to confidential material in the performance of their
powers and duties. If the judge who is the subject of a
complaint so requests in writing, copies of the complaint, the
transcripts of hearings by the commission thereon, if any, and
the dispositive action of the commission with respect to the
complaint, such copies with any reference to the identity of
any person who did not participate at any such hearing
suitably deleted therefrom, except the subject judge or
complainant, shall be made available for inspection and
copying to the public, or to any person, agency or body
designated by such judge."

The provision in §44 relating to public access to records states in relevant part that:

"After a hearing, the commission may determine that a judge
be admonished, censured, removed or retired. The
commission shall transmit its written determination, together
with its findings of fact and conclusions of law and the record
of the proceedings upon which its determination is based, to
the chief judge of the court of appeals who shall cause a copy
thereof to be served either personally or by certified mail,
return receipt requested, on the judge involved. Upon
completion of service, the determination of the commission, its
findings and conclusions and the records of its proceedings
shall be made public and shall be made available for public
inspection at the principal office of the commission and at the
office of the clerk of the court of appeals."

Based on the foregoing, only after the completion of a proceeding and service upon
a judge who is the subject of a proceeding in which it is determined that he or she should be
"admonished, censured, removed or retired" would records of the Commission be accessible
to the public. If no such determination has yet been reached, or if a complaint is dismissed,
I believe that the records must remain confidential.

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

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Albert B. Lawrence