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April 5, 1999

 

Mr. Charles Myrtetus
74-C-0316
Orleans Correctional Facility
3531 Gaines Basin Road
Albion, NY 14411-9199

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. Myrtetus:

I have received your letter of March 14. You wrote that you are attempting to obtain
records indicating payment made to an attorney by the assigned counsel program. You
indicated that the "Onondaga County Assigned Counsel Program of Onondaga County Bar
Association" has refused to honor your request.

In this regard, it is noted at the outset that the Freedom of Information Law pertains
to agency records. Section 86(3) of that statute defines the term "agency" to mean:

"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."

As such, the Freedom of Information Law generally applies to records maintained by state
and local government; it would not apply to a private organization.

The program to which you referred involves assignments under "Article 18-B", which
encompasses §§722 to 722-f of the County Law. Under §722, the governing body of a
county and the City Council in New York City are required to adopt plans for providing
counsel to persons "who are financially unable to obtain counsel." Those plans may involve
providing representation by a public defender, by a legal aid organization, through a bar
association, or by means of a combination of the foregoing.

While I believe that the records of the governmental entity required to adopt a plan
under Article 18-B are subject to the Freedom of Information Law, the records of an
individual attorney or private organization performing services under Article 18-B may or
may not be subject to the Freedom of Information Law, depending upon the nature of the
plan. For instance, if a plan involves the services of a public defender, I believe that the
records maintained by an office of public defender would fall within the scope of the Freedom
of Information Law (see County Law, §716), for that office in my view would constitute an
"agency" as defined in §86(3) of the Freedom of Information Law. However, if it involves
services rendered by private attorneys or associations, those persons or entities would not in
my view constitute agencies subject to the Freedom of Information Law.

The Onondaga County Bar Association is not, in my opinion, an "agency" subject to
the Freedom of Information Law. However, if the County maintains the records of your
interest, those records would fall within the scope of that statute.

Further, if a bar association, for example, maintains records for a county, I believe that
they would constitute county records. The Freedom of Information Law pertains to all
agency records, and §86(4) of that statute defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

Based upon the language quoted above, documents need not be in the physical possession of
an agency to constitute agency records; so long as they are produced, kept or filed for an
agency, the courts have held they constitute "agency records", even if they are maintained
apart from an agency's premises.

For instance, it has been found that records maintained by an attorney retained by an
industrial development agency were subject to the Freedom of Information Law, even though
an agency did not possess the records and the attorney's fees were paid by applicants before
the agency. The Court determined that the fees were generated in his capacity as counsel to
the agency, that the agency was his client, that "he comes under the authority of the Industrial
Development Agency" and that, therefore, records of payment in his possession were subject
to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County
of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Additionally, in a decision rendered by the Court of Appeals, the state's highest court,
it was found that materials received by a corporation providing services for a branch of the
State University that were kept on behalf of the University constituted "records" falling with
the coverage of the Freedom of Information Law. I point out that the Court rejected
"SUNY's contention that disclosure turns on whether the requested information is in the
physical possession of the agency", for such a view "ignores the plain language of the FOIL
definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore
College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New
York at Farmingdale, 87 NY 2d 410. 417 (1995)].

In sum, insofar as the records sought are maintained for the County, I believe that the
County would be required to direct the custodian of the records to disclose them in
accordance with the Freedom of Information Law, or obtain them in order to disclose them
to you to the extent required by law. Rather than seeking the records from the Bar
Association, it suggested that you direct a request to Onondaga County and its records access
officer.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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