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FOIL-AO-13849

January 30, 2003

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 attached material in which you questioned the propriety of
responses from the Office of the Monroe County Clerk and County Executive concerning your
request for a "surveillance warrant in [your] present felony conviction."

In regard to the response from the County Clerk's Office, which indicated that a surveillance
warrant is not in your file, it is noted that the Freedom of Information Law is applicable 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 provisions quoted above, the courts 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.

The response from the Office of the County Executive indicated that your "request was
denied because if such a warrant was issued, it would have been issued by the court and is therefore
exempt from disclosure. Furthermore, to the extent that such records exist, they were previously
furnished to you or your attorney."

In this regard, it is noted that although the Appellate Division found that court records
maintained by an agency fell outside the coverage of the Freedom of Information Law, the Court of
Appeals recently reversed that holding. Newsday v. Empire State Development Corporation [98 NY
2d 746, 359 NYS2d 855 (2002)] dealt with a request for copies of subpoenas issued by a court and
served upon a state agency by the office of a district attorney. In concluding that those records,
despite having been prepared by and emanated from a court are agency records subject to the
Freedom of Information Law, it was stated that:

"To be sure, had the subpoenas remained in the exclusive possession
of the court on whose behalf they were issued, they would have been
immune from compulsory disclosure under FOIL. That, however,
would not have been due to the fact that it was the court that
produced them, but because the Judiciary is expressly excluded from
agency status under FOIL. Therefore, no 'information **** in any
physical form' held or kept by a court as such is subject at all to
FOIL, any more so than would records held or kept by a private
person or any non-governmental entity. The immunity of the
subpoenas from FOIL when once possessed by a court, however, does
not run with those records. When they were served upon ESDC, a
FOIL-defined agency, they were fully subject to FOIL disclosure in
the absence of any showing by ESDC that some statutory exemption
applies."

Based on the foregoing, records maintained by or for the County, irrespective of their origin,
are subject to rights conferred by the Freedom of Information Law.

Lastly, in a decision concerning a request for records maintained by the office of a district
attorney it was found that:

"...if the petitioner or his attorney previously received a copy of the
agency record pursuant to an alternative discovery device and
currently possesses the copy, a court may uphold an agency's denial
of the petitioner's request under the FOIL for a duplicate copy as
academic. However, the burden of proof rests with the agency to
demonstrate that the petitioner's specific requests are moot. The
respondent's burden would be satisfied upon proof that a copy of the
requested record was previously furnished to the petitioner or his
counsel in the absence of any allegation, in evidentiary form, that the
copy was no longer in existence. In the event the petitioner's request
for a copy of a specific record is not moot, the agency must furnish
another copy upon payment of the appropriate fee...unless the
requested record falls squarely within the ambit of 1 of the 8 statutory
exemptions"[Moore v. Santucci, 151 AD 2d 677, 678 (1989)].

I hope that I have been of assistance.

Sincerely,

David Treacy
Assistant Director

DT:jm

cc: Maggie Brooks
Richard F. Mackey
James P. Smith