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May 25, 1994

 

 

Mr. Charles C. David Jr.
#9401620-DCJ-2-8
PO Box 326
Delhi, NY 13753-1000

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. David:

I have received your letter in which you asked "whether or not
an appeal, for what appears to be a denial or access to information
i.e., search warrant & affidavit, arrest warrant & affidavit is
handled by your agency or the Chief Administrative Judge of the
District where the denial occurred."

In this regard, I offer the following comments.

First, the Committee on Open Government is authorized to
provide advice concerning the Freedom of Information Law. The
Committee is not empowered to determine appeals or otherwise compel
an agency subject to the Freedom of Information Law to grant or
deny access to records. The provisions dealing with the right to
appeal an agency's denial of access to records are found in
§89(4)(a) of the Freedom of Information Law, which states in
relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive or
governing body of the entity, or the person
therefor designated by such head, chief
executive, or governing body, who shall within
ten business day of the receipt of such appeal
fully explain in writing to the person
requesting the records the reasons for further
denial, or provide access to the records
sought."

Second, 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
legislature."

In turn, §86()1) of the Law defines "judiciary" to mean:

"the courts of the state, including any
municipal or district court, whether or not of
record."

Based on the foregoing, police departments or offices of district
attorneys, for example, would constitute agencies required to
comply with the Freedom of Information Law. The courts and court
records, are outside the coverage of the Freedom of Information
Law.

That is not to suggest that court records are not available to
the public, for there are other provisions of law that may require
the disclosure of court records. For instance, §255 of the
Judiciary Law states generally that a clerk of a court must search
for and make available records in his custody.

Assuming that the records of your interest are maintained by
a court, the provisions in the Freedom of Information Law
concerning the right to an administrative appeal would not be
applicable. That being so, it is suggested that your resubmit your
request to the court clerk who maintains custody of the records,
citing an appropriate provision of law as the basis for the
request.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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