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March 19, 2001

FOIL-AO-12587

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 a variety of correspondence dealing with your attempts to obtain records.
Having reviewed their contents, I offer the following comments.

First, you referred to the "FOIL", and the "FOIA and PA", as well as a failure on the part of
an agency to provide "an itemization and index of the documents claimed to be exempt." In this
regard, the FOIA and PA are, respectively, the federal Freedom of Information and Privacy Acts, and
they apply only to records of federal agencies. The statute that deals with records of agencies of state
and local government in New York is the New York Freedom of Information Law.

With respect to the index of documents withheld, there is nothing in the Freedom of
Information Law or judicial decision construing that statute that would require that a denial at the
agency level identify every record withheld or include a description of the reason for withholding
each document. Such a requirement has been imposed under the federal Freedom of Information
Act, which may involve the preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484
F.2D 820 (1973)]. Such an index provides an analysis of documents withheld by an agency as a
means of justifying a denial and insuring that the burden of proof remains on the agency. Again, I
am unaware of any decision involving the New York Freedom of Information Law that requires the
preparation of a similar index.

Further, one decision suggests the preparation of that kind of analysis might in some
instances subvert the purpose for which exemptions are claimed. In that decision, an inmate
requested records referring to him as a member of organized crime or an escape risk. In affirming
a denial by a lower court, the Appellate Division found that:

"All of these documents were inter-agency or intra-agency materials
exempted under Public Officers Law section 87(2)(g) and some were
materials the disclosure of which could endanger the lives or safety
of certain individuals, and thus were exempted under Public Officers
Law section 87(2)(f). The failure of the respondents and the Supreme
Court, Westchester County, to disclose the underlying facts contained
in these documents so as to establish that they did not fall 'squarely
within the ambit of [the] statutory exemptions' (Matter of Farbman &
Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75, 83;
Matter of Fink v. Lefkowitz, 47 NY 2d 567, 571), did not constitute
error. To make such disclosure would effectively subvert the purpose
of these statutory exemptions which is to preserve the confidentiality
of this information" [Nalo v. Sullivan, 125 AD 2d 311, 312 (1987)].

Second, it appears that one aspect of your correspondence deals with court records. That
being so, I point out that the Freedom of Information Law pertains to agency records, and §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 "judiciary" to mean:

"the courts of the state, including any municipal or district court,
whether or not of record."

In view of the foregoing, the courts and court records are not subject to the Freedom of Information
Law.

The foregoing is not intended to suggest that the transcript cannot be obtained. Although the
courts are not subject to the Freedom of Information Law, court records are generally available under
other provisions of law (see e.g., Judiciary Law, §255). It is suggested that you request the transcript
from the clerk of the court in which the proceeding was conducted, citing an applicable provision
of 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
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