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May 13, 1994

 

 

Mr. Bernard Hanft
Attorney at Law
103-25 68th Avenue
Forest Hills, NY 11375

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. Hanft:

I have received your letters of April 8 and April 21, as well
as related correspondence.

The initial letter relates to a request for records of the
Commission on Judicial Conduct, particularly attendance sheets
pertaining to Commission members, and a time sheet pertaining to
Gerald Stern, the Commission's Administrator, for a certain date.
In response, you were informed that no time sheets are maintained
regarding Commissioners, and that the records that indicate their
attendance, minutes of meetings, are confidential pursuant to
Judiciary Law, §45. You were also told that Mr. Stern's time sheet
is confidential, but that he was on annual leave on the date that
you specified.

In this regard, 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 §87(2)(a) through (i) of the Law.

Relevant is the initial ground for denial, §87(2)(a), which
pertains to records that "are specifically exempted from disclosure
by state or federal statute". One such statute, §45 of the
Judiciary Law, pertains to the Commission on Judicial Conduct and
provides in relevant part that "...all complaints, correspondence,
commission proceedings and transcripts thereof, other papers and
data and records of the Commission shall be confidential and shall
not be made available to any person..." As stated earlier, minutes
of meetings serve as the records that indicate members' attendance.
Those records in my view clearly fall within the coverage of §45 of
the Judiciary Law and, therefore, are confidential.

With respect to your request for Mr. Stern's time sheet,
having spoken with him, he has agreed to disclose his time record
for the day in question upon payment of the requisite fee.

Your second letter pertains to the payment of fees for copies.
In response to a request, two photocopies were provided. It is
your contention that they are not the records that you requested,
and you have refused to pay the fee of fifty cents sought by the
Commission.

From my perspective, although the photocopies sent to you may
not be the records that you anticipated receiving, it appears that
they contain the information sought and that the request has been
essentially satisfied. If that is so, the agency complied by
providing the records; in my opinion, you are obliged to comply as
well via payment of the appropriate fee.

I note that in situations in which agencies have prepared
copies of records in an effort to respond to requests but the
applicants have failed or refused to pay the proper fees, it has
been advised that agencies need not prepare copies of additional
copies that are requested until payment is made.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Gerald Stern