April 4, 1996
Mr. Maurice Samuels
Stormville, NY 12582
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 Mr. Samuels:
I have received your letter of March 26 and the materials attached to it. I appreciate your kind words.
You have raised a series of questions concerning access to records. Some were answered in my view in my response to you of March 12. However, I offer the following comments.
First, you asked whether there is a statute that you can cite to compel a private attorney who represented you to disclose records. The Freedom of Information Law pertains to "agency" records, and a private attorney would not be required to disclose records pursuant to that statute. Whether there is another statute that would so require is unknown to me and represents a matter beyond the jurisdiction of this office.
Second, you referred to a response by an office of the district attorney in which it was stated that it could not locate certain records. You asked whether you can require an office of the district attorney to prepare an "itemized listing" of the records that it is unable to find. If the district attorney cannot find the records that you requested, I am unaware of how it could prepare an itemized listing without knowledge of the contents of a file or files. Moreover, even when an agency denies access to existing records that it was able to locate, there is no requirement that it itemize or identify each and every record that has been withheld [see Nalo v. Sullivan, 125 AD 2d 311 (1986)].
Third, you referred to records maintained by a court and court reporters. As indicated earlier, the Freedom of Information Law pertains to agency records, and the definition of the term "agency" appearing in §86(3) specifically excludes the judiciary. Therefore, the courts and court records fall beyond the coverage of the Freedom of Information Law. Frequently, however, other provisions of law require the disclosure of court records (see e.g., Judiciary Law, §255).
Lastly, you referred to a request directed to the office of the district attorney and suggested that all of the records "could and should have been made available." As indicated in my response to you of March 12, it was held in Moore v. Santucci [151 AD 2d 677 (1989)] that if records have been disclosed during a public proceeding, they are generally available under the Freedom of Information Law. In that decision, it was also found that an agency need not make available records that had been previously disclosed to the applicant or that person's attorney, unless there is an allegation "in evidentiary form, that the copy was no longer in existence." In my view, if you can "in evidentiary form" demonstrate that neither you nor your attorney maintains records that had previously been disclosed, the agency would be required to respond to a request for the same records. I also point out, however, that the decision in Moore specified that the respondent office of a district attorney was "not required to make available for inspection or copying any suppression hearing or trial transcripts of a witness' testimony in its possession, because the transcripts are court records, not agency records" (id. at 680). From my perspective, some of the records that you described as having requested from the District Attorney would likely constitute court records that the agency is not required to provide.
I hope that I have been of assistance.
Robert J. Freeman
cc: Vincent W.S. Lai, Assistant District Attorney
Gary J. Galperin, Chief, Special Projects Bureau