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FOIL-AO-17697

                                                                                                July 1, 2009

 

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear :

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Washington County Family Court, and a related request to the Office of the Washington County District Attorney.  Upon receiving responses that you found to be inadequate, you requested that the Committee provide assistance in your “search for access to the ‘law of the land’/‘due process’”. 

            Please note that the Committee on Open Government is not a court and that it is, therefore, unnecessary to format your request in a particular manner or to provide facts that have been stipulated to by another entity.  Pursuant to the Public Officers Law, our office provides legal advisory opinions concerning application of the Freedom of Information Law based on information provided.  In this regard, and in an effort to provide guidance with respect to the issues that you raised, we offer the following comments.

            First, 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 our 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,” if such a docket book is maintained.  Whether and how long a court must maintain a particular record is governed by the Office of Court Administration.

            It is likely that §166 of the Family Court Act is of more significance.  That statute states that:

"The records of any proceeding in the family court shall not be open to indiscriminate public inspection.  However, the court in its discretion in any case may permit the inspection of any papers or records.  Any duly authorized agency, association, society or institution to which a child is committed may cause an inspection of the record of investigation to be had and may in the discretion of the court obtain a copy of the whole or part of such record."

            In our view, a request for a record pertaining to yourself would not constitute “indiscriminate public inspection”, and therefore, in our opinion, if the Family Court maintains the record in question, it is authorized to disclose its contents to you.

            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 Attorney’s Office constitute agency records that fall within the coverage of the Freedom of Information Law.

            Third, the Freedom of Information Law 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 (j) of the law.  It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow.  In our view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld.  That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

            The Court of Appeals, the state’s highest court,  confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]).  As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" [89 NY2d 267, 275 (1996)].

            Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law.  In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different from that cited in response to your request.  The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports.  We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275).  The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).  If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox  Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

            In the context of your request, the District Attorney’s Office has engaged in a blanket denial of access in a manner which, depending on the circumstances, may be equally inappropriate.  We are not suggesting that the records sought must be disclosed in full.  Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.  As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).

            The provision upon which the denial is based, §87(2)(e)(i), authorizes an agency to withhold records that “are compiled for law enforcement purposes and which, if disclosed, would...interfere with law enforcement investigations or judicial proceedings...” In an Appellate Division decision that is often cited in the context of records relating to law enforcement, Pittari v. Pirro, [258 Ad2d 202 (1999)], it was stated that:

 “[t]he question is whether the nature of the records sought and the timing of the FOIL request rendered those records exempt from disclosure under FOIL.  The Court of Appeals, in Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 572, 419 N.Y.S.2d 467, 393 N.E.2d 463 noted:

‘[T]he purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution’” (id., 169).

            As we understand the matter, the defendant in Pittari sought records under the Freedom of Information Law prior to discovery, for the court found that “[i]f a criminal proceeding is pending, mandating FOIL disclosure would interfere with the orderly process of disclosure in the criminal proceeding set forth in CPL article 240" (id., 171). Whether or the extent to which the holding in Pitari is precedential would be dependent on facts that District Attorney’s Office may not have clearly expressed and of which we are unaware.

            In view of the nature of the records sought, it is possible that other grounds for denial of access might enable the District Attorney’s Office to withhold portions of the records.  For instance, identifying details pertaining to complainants, witnesses or others interviewed might be deleted on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [see §87(2)(b)].  Portions of inter-agency or intra-agency materials consisting of advice, opinion or recommendation offered by agency officers or employees could, in our view, be withheld under §87(2)(g) (see Gould, supra, 276-277).  The remaining aspects of the records sought from the District Attorney’s Office, however, would appear to be accessible, for none of the grounds for denial of access appear to apply.

            On behalf of the Committee on Open Government, we hope that this is helpful to you. 

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

 

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