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FOIL-AO-16547

April 27, 2007

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 letter, which was prepared in your capacity as “the Freedom of Information Official for the East Meadow Union Free School District.” You have sought an advisory opinion concerning a request for a copy of a document maintained by the District “that was produced by the Supreme Court of the State of New York.” The document at issue “indicates that the defendant, who was a former School Board member, pleaded guilty to the crime of grand larceny in 2004.” That person “resigned from the school board some time ago.”

Based on the language of the Freedom of Information Law and judicial precedent, I believe that the document must be disclosed. In this regard, I offer the following comments.

First, 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, although a school district is an “agency”, 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 often grant broad public access to those records.

Second, assuming that they have not been sealed, it has been determined by the Court of Appeals, the state’s highest court, that court records that come into the possession of an agency are agency records that fall within the scope of the Freedom of Information Law [Newsday v. Empire State Development Corporation, 98 NY2d 359, 746 NYS2d 855 (2002)]. Therefore, copies of records filed with or maintained by a court that are in possession of the District constitute agency records that fall within the coverage of the Freedom of Information Law.

Third, when records become available from the courts via public judicial proceedings, duplicate records maintained by agencies have been found to be accessible from those agencies pursuant to the Freedom of Information Law, even when the records might ordinarily be withheld under that statute. As stated in Moore v. Santucci:

“...while statements of the petitioner, his codefendants and witnesses obtained by the respondent in the course of preparing a criminal case for trial are generally exempt from disclosure under FOIL (see, Matter of Knight v Gold, 53 AD2d 694, appeal dismissed 43 NY2d 841), once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public” [151 AD2d 677,679 (1989)].

In short, when a record is made available through a public judicial proceeding, unless it is later sealed, in my opinion, nothing in the Freedom of Information Law would serve to enable an agency to deny access to that record.

Lastly, court records reflective of the conviction of an adult have long been available from the courts. Moreover, pursuant to Chapter 62 of the laws of 2003, the Office of Court Administration discloses records indicating an individual’s history of convictions throughout the state upon payment of a fee.

In sum, I believe that the record in question must be disclosed by the District.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

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