October 19, 1993
Mr. Warren A. (Ed) Dorsch
Sportsmen's Federation Inc
PO Box 122
Elizaville, NY 12523
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,
unless otherwise indicated.
Dear Mr. Dorsch:
As you are aware, I have received your letter of August 31 and
various materials related to it.
You have sought assistance in obtaining records from the
Columbia County Office of the Surrogate relating "restricted pistol
In this regard, having contacted the Division of State Police
on your behalf, I was informed that there is no particular officer
designated for the issuance of pistol licenses in most
jurisdictions in the state. Under §265.00(10) of the Penal Law, in
most locations in the state, including Columbia County, the
licensing officer may be "a judge or justice of a court of record
having his office in the county of issuance." I was also informed
that the phrases "restricted license" and "restricted pistol
license" are not specifically defined in any provision of law, and
that local written policies and procedures relating to any such
licenses may or may not exist. Therefore, it is possible that
there are no records in existence in the nature of policies or
administrative procedures concerning restricted pistol licenses.
If that is so, neither the Freedom of Information Law nor other
statute pertaining to access to records would apply.
If policies or administrative procedures do exist, I believe
that they would be available. As you are aware, 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
In turn, §86(1) defines "judiciary" to mean:
"the courts of the state, including any
municipal or district court, whether or not of
As such, the Freedom of Information Law excludes the courts and
court records from its coverage.
Whether the records maintained by a "licensing officer" should
be characterized as court records or agency records is conjectural.
While functions of licensing officers are carried out by judges in
most locations in the state, in other locations, the same functions
are carried out by commissioners of police or a county sheriff.
Therefore the functions of licensing officers do not appear to be
inherently judicial in nature.
Assuming that policies and procedures exist and that any such
records are subject to the Freedom of Information Law, I point out
that the Freedom of Information 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.
Of likely relevance would be §87(2)(g), which enables an
agency to withhold records that:
"are inter-agency or intra-agency materials
which are not:
i. statistical or factual tabulations or
ii. instructions to staff that affect the
iii. final agency policy or determinations;
iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."
It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld. Policies and procedures would in my view be
available under §87(2)(g)(iii), unless a different ground for
denial could appropriately be cited.
If the same kinds of records exist and are not subject to the
Freedom of Information Law, but rather are court records, it
appears that they would be accessible under §255 of the Judiciary
Law. I point out that nearly thirty years ago, it was found that
§255 and other statutes reflect the state's general public policy
that records kept in a public office be made available, unless
secrecy is conferred by statute or rule [see Werfel v. Fitzgerald,
23 AD 306 (1965)].
Lastly, as indicated earlier, there is no law that requires
the preparation of polices or procedures concerning the area of
your interest. If no such records have been prepared, neither the
Freedom of Information Law nor any other statute of which I am
aware would require they be created. In such a circumstance, in my
opinion, the Freedom of Information Law and similar or related
statutes would be inapplicable.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Don Lynk
Elizabeth R. Bennett