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FOIL-AO-13987
April 2, 2003

 

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

As you are aware, I have received your correspondence concerning the status of the
Committee on Professional Standards under the Freedom of Information Law. That entity
investigates complaints concerning the professional conduct of attorneys pursuant to the authority
conferred by the Appellate Division.

In my view, the Committee on Professional Standards is not subject to the Freedom of
Information Law. In this regard, I offer the following comments.

First, that statute pertains 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 "judiciary" to mean:

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

As such, the Freedom of Information Law excludes the courts from its coverage.

Second, with respect to the discipline of attorneys, §90(10) of the Judiciary Law states that:

"Any statute or rule to the contrary notwithstanding, all papers,
records and documents upon the application or examination of any
person for admission as an attorney or counsellor at law and upon any
complaint, inquiry, investigation or proceeding relating to the conduct
or discipline of an attorney or attorneys, shall be sealed and be
deemed private and confidential. However, upon good cause being
shown, the justices of the appellate division having jurisdiction are
empowered, in their discretion, by written order, to permit to be
divulged all or any part of such papers, records and documents. In the
discretion of the presiding or acting presiding justice of said appellate
division, such order may be made without notice to the persons or
attorneys to be affected thereby or upon such notice to them as he
may direct. In furtherance of the purpose of this subdivision, said
justices are also empowered, in their discretion, from time to time to
make such rules as they may deem necessary. Without regard to the
foregoing, in the event that charges are sustained by the justices of the
appellate division having jurisdiction in any complaint, investigation
or proceeding relating to the conduct or discipline of any attorney, the
records and documents in relation thereto shall be deemed public
records."

Therefore, when records are subject to §90(10) of the Judiciary Law, I believe that they may be disclosed only in conjunction with that statute, and that the Freedom of Information Law would be inapplicable. I note, too, that a different entity, one that also performs a function on behalf of the Appellate Division in relation to §90 of the Judiciary Law, was found to exercise a judicial function, is part of the judiciary and, therefore, is outside the coverage of the Freedom of Information Law [see Pasik v. State Board of Law Examiners, 102 AD2d 395 (1984)].

I hope that I have been of assistance.

RJF:tt