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May 18, 2001

FOIL-AO-12810

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 in which you sought assistance in your efforts to obtain records,
including grand jury minutes from the Wyoming County Court.

In this regard, I point out that the Committee on Open Government is authorized to provide
advice concerning the Freedom of Information Law. The Committee is not empowered to enforce
that statute or compel an agency to grant or deny access to records. However, based on a review of
your correspondence, I offer the following comments.

First, whether records are accessible or deniable, an agency is required to respond to a
request, and the Freedom of Information Law provides direction concerning the time and manner in
which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within
five business days, or if an agency delays responding for an unreasonable time after it acknowledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part
that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].,

Second, the Freedom of Information Law is applicable to agency records. Section 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 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. Even though other statutes may deal with access to court records, the
procedural provisions associated with the Freedom of Information Law (i.e., those involving the
designation of a records access officer or the right to appeal a denial) would not ordinarily be
applicable.

As you may be aware, county clerks perform a variety of functions, some of which involve
county records that are subject to the Freedom of Information Law, others of which may be held in
the capacity as clerk of a court. If your request involves records maintained by the County Clerk in
his capacity as court clerk, the Freedom of Information Law, in my opinion, would not apply.

It is also noted that the first ground for denial in the Freedom of Information Law, §87(2)(a),
pertains to records that "are specifically exempted from disclosure by state or federal statute". One
such statute, §190.25(4) of the Criminal Procedure Law deals with grand jury proceedings and
provides in relevant part that:

"Grand jury proceedings are secret, and no grand juror, or other
person specified in subdivision three of this section or section 215.70
of the penal law, may, except in the lawful discharge of his duties or
upon written order of the court, disclose the nature or substance of
any grand jury testimony, evidence, or any decision, result or other
matter attending a grand jury proceeding."

As such, grand jury minutes and "other matters attending a grand jury proceeding" would be outside
the scope of rights conferred by the Freedom of Information Law. Any disclosure of those records
would be based upon a court order or perhaps a vehicle authorizing or requiring disclosure that is
separate and distinct from the Freedom of Information Law.

Third, perhaps the most relevant provision concerning access to records maintained by law
enforcement agencies is section 87(2)(e), which permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed,
would:

i. interfere with law enforcement investigations or judicial
proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii" identify a confidential source or disclose confidential information
relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except
routine techniques and procedures."

In my view, the foregoing indicates that records compiled for law enforcement purposes can only
be withheld to the extent that disclosure would result in the harmful effects described in sub-
paragraphs (i) through (iv) of section 87(2)(e).

Another possible ground for denial is section 87(2)(f), which permits withholding to the
extent that disclosure "would endanger the life or safety of any person". The capacity to withhold
on that basis is dependent upon the facts and circumstances concerning an event.

Lastly, you asked that fees for copying be waived. Here I point out that there is nothing in
the Freedom of Information Law that requires an agency to waive fees, irrespective of the status of
an applicant for records. Further, it has been held that an agency may charge its established fees
even though the applicant is an indigent inmate [Whitehead v. Morgenthan, 552 NYS 2d 518
(1990)].

I hope that the foregoing serves to enhance your understanding of the matter and that I have
been of assistance.

Sincerely,

 

David M. Treacy
Assistant Director

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