April 29, 1993
Mr. Michael Browning
Orleans Corr. Facility
P.O. Box 436
Albion, N.Y. 14411-0436
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 Mr. Browning:
I have received your letter of April 12. Insofar as your
commentary pertains to the Freedom of Information Law, your inquiry
involves access to court papers and similar documents that are
maintained by an agency.
In this regard, although the situation that you described
appears to be unrelated to the Freedom of Information Law, I offer
the following comments concerning access to the kinds of records
that you described.
First, the Freedom of Information Law pertains to agency
records, and §86(3) of the Law defines the term "record" to
"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."
Therefore, litigation papers and related documents maintained by an
agency would constitute "records" subject to right to conferred by
the Freedom of Information Law.
Second, as a general matter, 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 section 87(2)(a) through (i) of the Law.
Third, the initial ground for denial in the Freedom of
Information Law, §87(2)(a), pertains to records that are
"specifically exempted from disclosure by state or federal
statute". Attorney work product is confidential pursuant to
§3101(c) of the Civil Practice Law and Rules. Material prepared
solely for litigation is generally confidential pursuant to
§3101(d). Similarly, communications between an attorney and a
client that fall within the attorney-client relationship are
considered privileged pursuant to §4503 of the Civil Practice Law
and Rules. However, records, such as those exchanged between
adversaries or that are submitted to a court and become part of
public court records would in my opinion be available from an
agency. Consequently, when records sought are publicly available
from a court, I believe that they would also be available from an
agency that mountains those records under the Freedom of
I hope that I have been of some assistance.
Robert J. Freeman
cc: Sally B. Johnson, Superintendent