March 26, 1998




Mr. Willie Walker
97-B-2418
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902-0500

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. Walker:

I have received your letter of March 7. You wrote that a private
investigator was "appointed by the court to investigate [your] case for the
defense." You have asked whether you can obtain the records of the private
investigator under the Freedom of Information Law.

In this regard, the Freedom of Information Law pertains to agency
records, and §86(3) of that statute defines the term "agency" to mean:

"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."

Based on the foregoing, the Freedom of Information Law applies, in general,
to records of entities of state and local government in New York. It would not
apply to a private organization or a private investigator.

If, however, the investigator was appointed to assist a public defender,
I believe that the records prepared for the public defender would fall within
the coverage of the Freedom of Information Law. It is emphasized that §86(4)
of that statute defines the term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based on the foregoing, if an investigator prepared or obtained records for a
public defender, I believe that they would be records of the public defender
that fall within the coverage of the Freedom of Information Law.

Section 716 of the County Law states in part that the "board of
supervisors of any county may create an office of public defender, or may
authorize a contract between its county and one or more other such counties
to create an office of public defender to serve such counties." Therefore, a
county office of public defender in my opinion is an agency subject to the
Freedom of Information Law that is required to disclose records to the extent
required by that statute.

In a case in which an attorney is appointed, while I believe that the
records of the governmental entity required to adopt a plan under Article 18-B of the County Law are subject to the Freedom of Information Law, the
records of an individual attorney performing services under Article 18-B may
or may not be subject to the Freedom of Information Law, depending upon
the nature of the plan. For instance, if a plan involves the services of a public
defender, for reasons offered earlier, I believe that the records maintained by
or for an office of public defender would fall within the scope of the Freedom
of Information Law. However, if it involves services rendered by private
attorneys or associations, those persons or entities would not in my view
constitute agencies subject to the Freedom of Information Law.

If you believe that the investigator prepared records for a public
defender, it is suggest that you request them not from the investigator, but
rather from the Office of the Public Defender, pursuant to the Freedom of
Information Law.

I hope that I have been of assistance

Sincerely,



Robert J. Freeman
Executive Director

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