February 21, 2007

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 the materials attached to it. The issue involves whether court records maintained by the Office of Court Administration are subject to the Freedom of Information Law. The matter appears to have been precipitated by a request directed to the Administrative Judge for Nassau County for “all recusal letters” from various judges relating to a particular judicial proceeding.

In this regard, first, the Freedom of Information Law applies 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."

As such, the courts are not subject to the Freedom of Information Law. However, I point out that it has been held that the Office of Court Administration is an "agency" required to comply with the Freedom of Information Law. The initial decision on the subject, which cited an advisory opinion prepared by this office, included the following discussion of the matter:

"The court must look to the intent of the legislature to determine whether the Office of Court Administration, in the exercise of a purely administrative and personnel function, is to be excluded from the applicable provisions of the Freedom of Information Law. Public Officers Law §84 states in part 'The people's right to know the process of governmental decisionmaking and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.'

"In view of the legislative purpose to promote open government, the court is inclined to construe narrowly any section that would tend to exclude offices of government from the law. Public Officers Law §86 specifically refer to courts when it defines 'Judiciary.' The legislature did not include the administrative arm of the court. The Office of Court Administration does not exercise a judicial function, conduct civil or criminal trials, or determine pre-trial motions. Respondent is not a 'court.'

"It is significant to note that respondent refers to several sections of the Judiciary Law that regulate access to judicial records and allegedly perform a function similar to that of the Freedom of Information Law. None of the sections specified would address access to the information sought by petitioner pertaining to personnel and salaries exclusively.

"Accordingly, the court rejects respondent's contention that it is in all respects exempt from the provisions of the Freedom of Information Law." [Babigian v. Evans, 427 NYS 2d 688, 689 (1980) aff'd 97 Ad 2d 992 (1983); Quirk v. Evans, 455 NYS 2d 918, 97 Ad 2d 992 (1983)].

Second, the Court of Appeals has held that records transmitted by a court to an agency are agency records that fall within the coverage of the Freedom of Information Law [see Newsday v. Empire State Development Corporation, 98 NY2d 359 (2002)]. Therefore, when records initially maintained by a court come into the possession of an agency, those materials constitute agency records that are subject to rights of access conferred by the Freedom of Information Law. That statute, in brief, is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the law

Lastly, I recognize that the letterhead of the Administrative Judge includes the phrases “Unified Court System” and “Office of Court Administration.” Nevertheless, I am unaware of his function in the context of your inquiry. If it is a judicial function, the records at issue might be found to be outside the coverage of the Freedom of Information Law [see e.g., Pasik v. Board of Law Examiners, 102 AD2d 395 (1984); appeal withdrawn, 64 NY2d 886 (1985)].

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Hon. Jonathan Lippman
Hon. Anthony Marano
Paul Lamanna