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March 14, 2000

FOIL-AO-11991

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

I have received your letter of January 17 and the materials attached to it. You have sought
guidance concerning your right to obtain a copy of a search warrant from the City of Niagara Falls.
You indicated that the search resulted in damage to your property, and that a City Court official said
that you could obtain a copy with "an order from a higher court."

In this regard, I offer the following comments.

First, the Freedom of Information Law, the statute within the advisory jurisdiction of the
Committee on Open Government, is applicable to agency records. Section 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 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. It is recommended that a request for court records be directed to the clerk
of the court in possession of the document, citing an applicable statute as the basis for the request.

Second, assuming that copies of the warrant are maintained by the Office of the District
Attorney or the Police Department, for example, because they are agencies, the Freedom of
Information Law would apply. 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. Since the
warrant has been executed and the search made, it is unlikely in my view that any of the grounds for
denial would be applicable.

Lastly, notwithstanding the foregoing, pursuant to §160.50 of the Criminal Procedure Law,
if a person is charged with a crime and the charge is later dismissed, the records relating to event
become sealed. If the records have been sealed, neither the court nor an agency in possession of the
record would be required to disclose the record in question to you. If the records regarding the event
have not been sealed, however, it appears that the record of your interest should be disclosed.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Martha J. Farbo-Lincoln