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October 17, 2000

FOIL-AO-12343

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 August 22, as well as the correspondence associated
with it. Please accept my apologies for the delay in response.

In brief, you requested the "criminal records database" maintained by the Office of
Court Administration (hereafter "OCA"), including "updates on a monthly basis", under the
Freedom of Information Law. That agency denied the request on the ground that the
database consists of court records that are not subject to the Freedom of Information Law.
Mr. John Eiseman, Deputy Counsel, wrote that court records remain beyond the coverage of
that statute, even though they may be in possession of the OCA, which "maintains those
records in an electronic format for the courts." You have sought an advisory opinion
concerning the propriety of the denial of your request.

In this regard, I offer the following comments.

First, even if the Freedom of Information Law applies, I do not believe that an agency
must honor a request that is prospective in nature, i.e., a request in which an applicant asks
that certain records be made available on a periodic basis. That statute pertains to existing
records, and §89(3) states in part that an agency is not required to prepare a record that does
not exist or that it does not maintain. In my view, since, in a technical sense, an agency can
neither grant nor deny access to records that do not yet exist, an agency is not required to
honor a request that is prospective.

Second, as you are aware, the Freedom of Information Law pertains to agency
records, and §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 foregoing, the courts and court records are not subject to the Freedom of
Information Law. However, it has been determined that OCA is not a court, but rather is an
"agency" that falls within the coverage of that statute [see Babigian v. Evans, 427 NYS2d
699, aff'd 97 AD2d 992 (1983) and Quirk v. Evans, 455 NYS2d 918, 97 AD2d 992 (1983)].
In Babigian, the initial decision concerning the issue, the matter involved records relating to
employees; it did not deal with what would typically be records maintained by a court that
were also maintained by OCA. I point out that the court in Babigian in a footnote cited and
apparently relied on an advisory opinion rendered by this office concerning the development
of the legislation that was later enacted as the Freedom of Information Law. A portion of the
passage cited by the court referred to the negotiations on the bill that became law that
suggested that:

"During the negotiations, the status of the administrative
branches of the court system were discussed in relation to the
definitions of both ‘judiciary' and ‘agency.' The reason for the
exclusion of the courts from the Freedom of Information Law
is based upon the notion that there are numerous statutes in the
Judiciary Law and court acts which specifically direct that
records be available or confidential. Consequently, neither the
original Freedom of Information Law nor the Law as amended
would affect rights of access to court records, even if the courts
were included in the Law" (id., 690).

From my perspective, the early opinion and the Babigian decision established a line of
demarcation between those records maintained by OCA as an agency carrying out its
administrative functions and, by implication, others which may ordinarily be characterized as
court records.

While I know of no judicial decision that deals directly with the records at issue, I
note that it has been held that the office of a district attorney, which clearly is an "agency"
subject to the Freedom of Information Law, "is not required to make available for inspection
or copying any suppression hearing or trial transcripts of a witness' testimony in its
possession, because the transcripts are court records not agency records" [Moore v. Santucci,
151 AD2d 677, 680 (1989)].

In consideration of the legislative history cited by the court in Babigian and the
holding in Moore, it appears that possession of court records by OCA does not transform the
records into agency records. If that is so, I believe that the response to your request by OCA
was consistent with law.

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:jm

cc: Judge Ann T. Pfau
Michael Colodner
John Eiseman