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October 9, 2001

FOIL-AO-12999

Dear

I have received your letter in which you sought advice relating to a request pursuant to §255
of the Judiciary Law for certain items relating to a divorce proceeding.

In this regard, as you are aware, the primary function of this office involves offering advice
and opinions concerning the Freedom of Information Law. That statute, in my view, is not pertinent
in the context of your inquiry.

By way of brief background, the Freedom of Information is applicable 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 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 may grant broad public access to those records.

Notwithstanding the foregoing, I offer the following comments.

The provision cited in the request, §255 of the Judiciary Law, generally provides that records
maintained by the clerk of a court must be made available. However, a separate statute deals directly
with records concerning divorce and other matrimonial actions or proceedings. Specifically, I
believe that access to records relating to matrimonial proceedings is governed by §235(1) of the
Domestic Relations Law, which states that:

"An officer of the court with whom the proceedings in a matrimonial
action or a written statement of separation or an action or proceeding
for custody, visitation or maintenance of a child are filed, or before
whom the testimony is taken, or his clerk, either before or after the
termination of the suit, shall not permit a copy of any of the
pleadings, affidavits, findings of act, conclusions of law, judgment of
dissolution, written agreement of separation or memorandum thereof,
or testimony, or any examination of perusal thereof, to be taken by
any other person than a party, or the attorney or counsel of a party,
except by order of the court."

Based on the foregoing, as a general matter, the details of a matrimonial proceeding are considered
confidential.

As you are likely aware, subdivision (3) of §235 states that:

"Upon the application of any person to the county clerk or other
officer in charge of public records within a county for evidence of the
disposition, judgment or order with respect to a matrimonial action,
the clerk or other such officer shall issue a ‘certification of
disposition', duly certifying the nature and effect of such disposition,
judgment or order and shall in no manner evidence the subject matter
of the pleadings, testimony, findings of fact, conclusions of law or
judgment of dissolution derived in any such action."

While any person may request a "certification of disposition" which indicates that a divorce has been
granted, I believe that other records involving separation and divorce are exempt from disclosure,
except as provided in subdivision (1) of §235.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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