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FOIL-AO-15341

June 21, 2005

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

I have received your letter and apologize for the delay in response. Following a review of vouchers by the Dresden Town Board, you asked to review the monthly report submitted to the Board by the Town Justice. It was contended, however, that the report is not a public record.

From my perspective, the record in question should be made available by the Town or by the court. In this regard, I offer the following comments.

First, to put the matter in perspective, I note that the Freedom of Information Law is applicable to agency records, and that §86(3) defines the term "agency" to mean:

"...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."

Based on the foregoing, the Town of Dresden constitutes an "agency", but its justice court falls outside the coverage of the Freedom of Information Law.

Second, when applicable, the Freedom of Information Law includes all agency records within its coverage, for §86(4) defines the term "record" expansively to include:

"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

I point out that the Court of Appeals, the state’s highest court, has held that records transmitted by a court to an agency are agency records that fall within the coverage of the Freedom of Information Law [see Newsday v. Empire State Development Corporation, 98 NY2d 359 (2002)]. Therefore, when the Town Justice submits a report or any other documentation to Town officials, those materials constitute agency records that are subject to rights of access conferred by the Freedom of Information Law. That statute, in brief, is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.
In my view, a monthly report involving the collection of fines or similar information must be disclosed, for none of the grounds for denial of access could properly be asserted.

Lastly, while courts are not included within the coverage of the Freedom of Information Law, court records are generally accessible pursuant to other provisions of law. In this instance, pertinent is §2019-a of the Uniform Justice Court Act, which states in relevant part that "The records and dockets of the court except as otherwise provided by law shall be at reasonable times open for inspection to the public...." Therefore, unless there is a provision of law that authorizes or requires a justice court to withhold records, the records in possession of a justice court are accessible to the public.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Town Board
Town Justice