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FOIL-AO-16167

September 27, 2006

Dear

I have received your letter addressed to Secretary of State Jacobs, who serves as a member of the Committee on Open Government. The staff of the Committee is authorized to respond on behalf of its members.

You referred to the Secretary as the "chief custodian" of records for the State of New York and wrote of difficulty encountered in attempting to gain access to divorce records, as well as others involving your "roots." In this regard, I offer the following comments.

First, while he serves as the legal custodian of some records, the Secretary of State is not generally the custodian of State records.

Second, with respect to divorce records, by way of brief background, the Freedom of Information Law 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 often available to the public, for other provisions of law may grant broad public access to those records. Although §255 of the Judiciary Law generally requires the disclosure of court records, a separate statute deals directly with records concerning divorce and other matrimonial actions or proceedings. Specifically, 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, the details of a matrimonial proceeding are considered confidential.

However, 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.

Lastly, although the Freedom of Information Law pertains generally to access to agency records and the fees that may be charged for copies of records, provisions of the Public Health Law deal specifically with birth and death records and fees for services rendered relating to searches for and copies of those records; the Domestic Relations Law includes provisions pertaining to marriage records. In brief, §4173 of the Public Health Law permits the disclosure of birth records by a registrar only upon issuance of a court order, or to the subject of the birth record or the parent or other lawful representative of a minor. Similarly, §4174 of the Public Health Law limits the circumstances under which the Commissioner of the Department of Health or registrars of vital records (i.e., town clerks) may disclose death records and specifies that those records are not subject to the Freedom of Information Law. As such, birth and death records are generally confidential and exempt from the disclosure requirements found in the Freedom of Information Law. Section 19 of the Domestic Relations Law pertains to marriage records maintained by town and city clerks and provides that some aspects of those records are available to the public, while others may be withheld unless there is a showing of a "proper purpose" that would justify disclosure.

The Public Health Law includes provisions that deal directly with genealogical records. Specifically, subdivision (3) of §4174 refers to searches for and the fees for records sought for genealogical or research purposes that may be imposed by "any person authorized" by the State Commissioner of Health, i.e., a registrar designated in a city, or town. That provision states that:

"For any search of the files and records conducted for authorized genealogical or research purposes, the commissioner or any person authorized by him shall be entitled to, and the applicant shall pay, a fee of ten dollars for each hour or fractional part of an hour of time for search, together with a fee of one dollar for each uncertified copy or abstract of such records requested by the applicant or for a certification that a search discloses no record."

Further, the Commissioner of Health has promulgated "Administrative Rules and Regulations" pertaining to genealogical research indicating that birth records need not be disclosed unless the subject of the birth record is known to have been deceased prior to 1924; death records need not be disclosed regarding deaths occurring after 1949. The summary also includes a restriction regarding the disclosure of marriage records. However, in an opinion rendered by this office with which the Department of Health has agreed, it was advised that basic information contained in marriage records, such as the names of the parties, the dates of a marriage or marriage application, the duration of the marriage and the municipality of residence of licensees should be made available to any person, unless a request is made for commercial or fund-raising purposes. More intimate information would only be disclosed upon a showing of a "proper purpose."

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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