June 17, 1999
Mr. John Wesley Folsom
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902-0500
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
Dear Mr. Folsom:
I have received your letter of May 18. You have asked whether the public defender
who represented you must disclose a report about you to you under the Freedom of
In this regard, the Freedom of Information Law pertains to agency records, and
§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
Based on the foregoing, the Freedom of Information Law applies, in general, to records of
entities of state and local government in New York. It would not apply to a private
organization or a private investigator.
Section 716 of the County Law states in part that the "board of supervisors of any
county may create an office of public defender, or may authorize a contract between its
county and one or more other such counties to create an office of public defender to serve
such counties." Therefore, a county office of public defender in my opinion is an agency
subject to the Freedom of Information Law that is required to disclose records to the extent
required by that statute.
In a case in which an attorney is appointed, while I believe that the records of the
governmental entity required to adopt a plan under Article 18-B of the County Law are
subject to the Freedom of Information Law, the records of an individual attorney 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, for reasons offered earlier, I believe that the records maintained by or for an office
of public defender would fall within the scope 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.
I hope that I have been of assistance.
Robert J. Freeman