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February 5, 2001

FOIL-AO-12535

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 and the correspondence attached to it. You have sought assistance
in obtaining records, particularly vouchers, time sheets and similar materials, from the Office of the
Monroe County Public Defender. You were informed by the Public Defender that no such records
are maintained and that his office is not subject to the Freedom of Information Law.

In this regard, first, as I understand the situation, the Office of the Public Defender is required
to comply with the Freedom of Information Law. That statute 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 legislature."

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. I note, too, that the
letterhead of the Office of the Public Defender includes the Monroe County logo and the name of
the County Executive.

Second, notwithstanding the foregoing, it is emphasized that the Freedom of Information Law
pertains to existing records, and that §89(3) states in part that an agency is not required to create or
prepare a record in response to a request. Therefore, if the Office of the Public Defender does not
maintain the records sought, there would be no obligation on its part to prepare records on your
behalf. To the extent that records do exist that describe services rendered, such records would, based
on the judicial interpretation of the Freedom of Information Law, be available in great measure [see
Orange County Publications v. County of Orange, 637 NYS2d 596 (1995)].

Lastly, since the Public Defender referred to §50-b of the Civil Rights Law, I point out that
one of the grounds for denial of access, §87(2)(a) of the Freedom of Information Law, pertains to
records that "are specifically exempted from state or federal statute." One such statute is §50-b, and
in my view, records subject to that statute are exempt from disclosure under the Freedom of
Information Law, and any disclosure of records falling within its coverage can be made only pursuant
to that statute.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Edward J. Nowak