October 3, 2006

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.


I have received your letter and, as requested, have enclosed a brochure concerning New York’s open government laws.

You also sought information concerning power of attorney and Surrogate’s Court records. In this regard, issues involving power of attorney are beyond the jurisdiction or the expertise of this office, and we have no information on the subject. Further, 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 the term "judiciary" to mean:

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

Based on the foregoing, the Freedom of Information Law does not pertain to the courts or court records. This is not to suggest that court records are confidential; on the contrary, court records in many instances must be made available by the court or court clerk. In the case of a Surrogate's Court, §2501 of the Surrogate's Court Procedure Act states in relevant part that:

"1. The clerk of the court shall keep a record of and be responsible for the proper indexing, filing or recording, as the case may be, collating, arranging, restoring and preserving of all records, documents, books, maps, instruments and other matter specified in this article or by other requirement of law heretofore or hereafter deposited, filed or recorded, of all matters specified by this article or by other requirement of law...

8. All books and records other than those sealed are open to inspection of any person at reasonable times."

Therefore, insofar as records in which you are interested are maintained by a Surrogate's Court, I believe that they would be available, except to the extent that the records may be sealed.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director