January 14, 2008
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 Ms. Petros:
As you are aware, we have received your letter. Please accept my apologies for the delay in response.
You have sought assistance in obtaining divorce records that are more than one hundred years old from the Seneca County Clerk. Additionally, you questioned the fee for a copy of a record charged by the Clerk.
In this regard, it is noted at the outset that the primary function of this office relates to the Freedom of Information Law, which does not apply to the courts or records maintained by the courts. The records of your interest are filed with a court officer, i.e., a court clerk or county clerk acting as the clerk of a court. That being so, the records are outside the coverage of the Freedom of Information Law. Nevertheless, as you suggested, although records indicating the details of matrimonial proceedings are generally confidential to all but the parties and their attorneys pursuant to §235 of the Domestic Relations Law, subdivision (5) of that statute specifies that the restrictions requiring confidentiality “shall cease to apply one hundred years after date of filing, and such records shall thereupon be public records available to public inspection.” Since the records sought involve a divorce occurring in 1876, I believe that they must be made available based on subdivision (5).
With respect to fees for copies, when the Freedom of Information Law applies, it authorizes certain maximum fees, unless a different statute authorizes a different fee. Again, the Freedom of Information Law would not apply in this instance. It is my understanding that §8019(f)(1) of the Civil Practice Law and Rules authorizes a clerk to charge sixty-five cents for the preparation of a copy of a record, with a minimum fee of one dollar and thirty cents. Further, when documents are considered genealogical records, subdivision (3) of §4174 of the Public Health Law 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, 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 twenty dollars for each hour or fractional part of an hour of time for search, together with a fee of two dollars for each uncertified copy or abstract of such records requested by the applicant or for a certification that a search discloses no record."
I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.
cc: Hon. Tina Lotz