February 6, 1997





Mr. Mark Leaver
Shawangunk Correctional Facility
Box 700
Wallkill, NY 12589-0700

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. Leaver:

I have received your letter of January 14 and the correspondence attached to it.

You have sought assistance in obtaining a copy of a transcript of a guilty plea hearing from the Office of the Nassau County District Attorney. The assistant district attorney who responded to your request indicated that the transcript is a court record that falls beyond the coverage of the Freedom of Information Law. Based on a judicial decision pertinent to the matter, I concur with the District Attorney's response.

In this regard, the Freedom of Information Law pertains 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) defines "judiciary" to mean:

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

In view of the foregoing, the courts and court records are not subject to the Freedom of Information Law.

I direct your attention to the decision cited in the response to your request, Moore v. Santucci [151 AD 2d 677 (1989)]. That decision specified that the respondent office of a district attorney "is 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).

The foregoing is not intended to suggest that the transcript cannot be obtained. Although the courts are not subject to the Freedom of Information Law, court records are generally available under other provisions of law (see e.g., Judiciary Law, §255). It is suggested that you request the transcript from the clerk of the court in which the proceeding was conducted, citing an applicable provision of law.

I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Douglas Noel
Lawrence J. Schwarz