September 10, 2004

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.


As you are aware, I have received your letter in which you raised a series of questions involving public access to records.

You wrote that you received "a FOIL review traffic tickets for 2003 and 2004." Although you expressed the belief that they are accessible to the public, you added that the Court Clerk stapled "drivers abstracts" to approximately half of those two thousand documents. The abstracts were obtained by the Town through the New York Statewide Police Information Network ("NYSPIN"). Court clerks, according to your letter, "believe that all records obtained from NYSPIN are confidential" based on "section 3.2H and 3.3E" of NYSPIN rules.

In consideration of the foregoing, you raised the following questions:

"1. Are the abstracts deniable records because release would be in invasion of personal privacy or because they are inter-agency documents?

2. Do the policies of NYSPIN overshadow the policies of FOIL (NYSPIN does not appear to be statute, but policy)?

3. If the abstracts are deniable, what is your opinion about the Court clerk separating the tickets from the abstracts so that they are available for public review for THIS specific request (2,000 records); or that is considered beyond the call of duty?

4. Would you advise me to advise the Court in the future NOT to attach these documents because of their differing accessibility, if they are different?"

In this regard, I do not believe that records maintained by court or court clerks fall within the coverage of the Freedom of Information Law. That statute is applicable to agency records, and §86(3) 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 the term "judiciary" to mean:

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

Based on the provisions quoted above, the courts are not subject to the Freedom of Information Law. This is not to suggest that court records are not generally available to the public, for other provisions of law (see e.g., Uniform Justice court Act, §2019-a; Judiciary Law, §255) may grant broad public access to those records. Even though other statutes may deal with access to court records, the procedural provisions associated with the Freedom of Information Law (i.e., those involving the designation of a records access officer or the right to appeal a denial) would not ordinarily be applicable.

Since the records in question are maintained by a justice court, I believe that the governing statute concerning access to the records at issue is §2019.a of the Uniform Justice Court Act. That statute provides in relevant part that: "The records and dockets of the court except as otherwise provided by law shall be at reasonable times open for inspection to the public..." As I understand §2019-a, unless a different provision of law specifies that records maintained by a justice court are confidential, the records are accessible to the public. Examples of confidential records would involve instances in which criminal charges are dismissed in favor of an accessed, in which case records are typically sealed pursuant to §160.50 of the Criminal Procedure Law. Another would deal with proceedings relating to youthful offenders in which records are automatically sealed pursuant to §720.15 of the Criminal Procedure Law or sealed by order of the court pursuant to §720.35.

In the context of the facts that you presented, I know of no provision of law that would remove the records at issue from public rights of access. That being so, and because §2019-a of the Uniform Justice Court Act applies rather than the Freedom of Information Law, I believe that the records maintained by a court clerk, including the abstracts, are accessible.

I note that there are numerous instances in which records maintained by courts are accessible to the public, even though equivalent records maintained by agencies may be withheld in whole or in part pursuant to the Freedom of Information Law. Detailed personal financial information contained within court records is public; equivalent information maintained by an agency subject to the Freedom of Information Law may be deniable on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see §§87(2)(b) and 89(2)(b)].

In short, since the Freedom of Information Law does not apply to a court, and if no law serves as a basis for enabling the court to withhold the abstracts, I believe that they are accessible to the public. Whether the abstracts should be maintained separately from other records is, in my view, within the discretionary authority of the court. While those records would remain accessible, it seems unlikely that there would be a significant number of requests for the abstracts.

Next, the NYSPIN rules do not, in my opinion, require that records acquired through NYSPIN be kept confidential. The first provision to which you referred, §3.2H, states that:

"Criminal Justice information means all computer information or computer material processed by or though NYSPIN regardless of the source of the information or material, including material and information from noncriminal justice computer systems such as, but not limited to, the New York State Department of Motor Vehicles and the Truck Mileage Tax data base file."

The foregoing, is merely a definition; it does not refer to confidentiality. The other provision, §3.3E, states in relevant part that:

"No printed material obtained vis NYSPIN (or copies thereof) may be delivered to persons or agencies outside criminal justice except as directed by an appropriate court or other proper legal authority. Requests for printed material (or copies thereof) pursuant to the Public Officer’s Law, Article 6, titled: The Freedom of Information Law, need not be delivered to persons or agencies outside criminal justice if exemptions listed under Section 87, Subdivision 2, (a-i) apply."

A close reading of the provision quoted above indicates that printed material obtained via NYSPIN is public, unless an exception to rights of access listed in paragraphs (a) through (i) of the Freedom of Information Law may properly be asserted. Stated differently, those materials are treated in the same manner for purposes of the Freedom of Information Law as any other agency records.

Lastly, according to judicial decisions, an agency’s regulations may not render records deniable or confidential, unless there is a basis for so doing pursuant to one or more of the grounds for denial appearing in the Freedom of Information Law. The first ground for denial in the Freedom of Information Law, §87 (2)(a), refers to records that may be characterized as confidential and enables an agency to withhold records that "are specifically exempted from disclosure by state or federal statute." A statute, based upon judicial interpretations of the Freedom of Information Law, is an act of the State Legislature or congress [see Sheehan v. city of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not equivalent of statutes for purposes of §87 (2)(a) of the Freedom of Information Law [see Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ]. Therefore, insofar as an agency’s regulations render records or portions of records deniable in a manner inconsistent with the Freedom of Information Law or some other statute, those regulations would, in my opinion, be invalid. Regulations cannot operate, in my view, in a manner that provides fewer rights of access than those granted by the Freedom of Information Law.

In this instance, the NYSPIN rules do not conflict with the Freedom of Information Law, for they merely state that materials obtained via NYSPIN "need not be delivered...if exemptions listed [in the Freedom of Information Law] apply."

I hope that the foregoing offers clarification and that I have been of assistance.



Robert J. Freeman
Executive Director