September 2, 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 facts presented in your correspondence.
I have received your letter in which you requested an advisory opinion regarding your ability to inspect and obtain copies of "public criminal records" from county clerks' offices and the fees that may be charged for the records.
You wrote that you "have been making attempts to obtain access to public records that are housed at the county clerk's office in each county throughout the State of New York. "[You are] specifically attempting to gain access to County Clerk's files within the boroughs. [You] have placed many phone calls to the County Clerk's office of each one of the boroughs only to be told that these public records are NOT available for inspection or viewing at the County Clerk's office and that if [you] wanted to view these public records or obtain a copy of them (certified or not certified) [you] would have to go to the Office of Court Administration and pay $52.00 to do so."
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, and others, including those of your interest, which may be held as clerk of a court.
The New York 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 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.
You made reference to Judiciary Law §§255 and 255-b. Section 255 provides that:
"...[A] clerk of a court must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts or certificates of change therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, can not be found."
Judiciary Law §255-b states that "[a] docket book, kept by a clerk of a court, must be kept open, during the business hours fixed by law, for search and examination by any person." In my view, §255 requires a court clerk to search for records and provide copies at a rate "allowed to a county clerk for a similar service", and §255-b requires a court clerk to allow anyone to inspect a "docket-book."
In the case of fees that may be assessed by county clerks, §§8018 through 8021 of the Civil Practice Law and Rules require that county clerks charge certain fees in their capacities as clerks of court and other than as clerks of court. Since those fees are assessed pursuant to statutes other than the Freedom of Information Law, the fees may exceed those permitted by the Freedom of Information Law. Section 8019 of the Civil Practice Law and Rules provides in part that "[t]he fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services...".
Effective July 14, 2003, the state legislature increased the fees that county clerks may charge for copies of records. I have enclosed an excerpt from Chapter 62 of the laws of 2003, which details the maximum fees that county clerks may now charge for copies of records. Also enclosed is another section of the legislation, which authorizes the Office of Court Administration (OCA) to charge $52.00 for an individual statewide criminal history record search. The ability to obtain the results of an OCA statewide search, in my view, does not negate the responsibilities imposed upon county clerks, and I am unaware of any change in the law indicating that records previously available from county clerks are no longer available. In my opinion, notwithstanding the service being provided by the OCA regarding criminal histories, county clerks are still required, upon request, to search files and provide copies upon payment of fees allowed by law.
Lastly, it is noted that while records relating to convictions may be available from the courts or other sources, when charges are dismissed in favor of an accused, records relating to arrests that did not result in convictions are generally sealed pursuant to §160.50 of the Criminal Procedure Law.
I hope that I have been of assistance.