FOIL AO 19662


May 4, 2018

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, except as otherwise indicated.

Dear Mr.:

This is in response to your request for an advisory opinion regarding the application of the Freedom of Information Law (FOIL) to the Office of Administrative Trials and Hearings (OATH). 

In your letter, you express the opinion that because OATH conducts “administrative trials and hearings, exercise a judicial function, and determine motions and penalties,” it is subject to the judiciary exception set forth in FOIL.  For the reasons set forth below, it is our opinion that OATH is an agency subject to FOIL. 

As you are aware, FOIL 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." (emphasis is mine)

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."

While the term “court” is not defined under Judiciary Law, §3 of that Chapter does address when the use of that term is prohibited:

“No person, firm, association or corporation shall hereafter use or employ the term “court” as part of or in connection with the name of any body, board, bureau, association, organization or corporation, or in referring to any body, board, bureau, association, organization or corporation, in such manner as to be calculated reasonably to lead to the belief that the body, board, bureau, association, organization or corporation is vested with judicial power or is a part of the judicial system of the state; the use of such term being expressly limited by this section for reference to a court of record or a court not of record, duly organized and existing under the laws of the state as a part of the judicial system of the state.”

OATH was created under the New York City Charter, Chapter 45-A. Section 1048 of the Charter states:

“There shall be an office of administrative trials and hearings which shall conduct adjudicatory hearings for all agencies of the city unless otherwise provided for by executive order, rule, law or pursuant to collective bargaining agreements.”

Nowhere in the Charter is OATH referred to as a “court” or as an arm of the “judiciary.”  OATH is an independent City agency that serves a function that would otherwise be performed by administrative law judges housed within, or contracted by, other New York City agencies.  Administrative law judges perform a quasi-judicial function within many government agencies but, in our opinion, that does not make records of those proceedings exempt from FOIL as records of the judiciary. 

OATH’s website describes trials overseen by its administrative law judges:

“The mission of OATH's Trials Division is to provide fair and neutral administrative proceedings, which protect the due process rights of all litigants. Matters adjudicated at the Trials Division are akin to civil trials without a jury.”

The fact that the agency acknowledges that its proceedings are “akin” to a civil trial, as opposed to an actual civil trial, supports our opinion that the proceedings are not “court” proceedings. 

The section of the agency’s website relating to its hearings also states:

“OATH is the City's central independent administrative law court; it is not part of the state court system.”

As referenced above, the term “judiciary” is defined to include “the courts of the state.” The local law creating OATH does not define it as a “court” and the agency’s own website explicitly states that “it is not part of the state court system.”  As such, it is our opinion that OATH is an agency as that term is defined by FOIL and is not subject to the judiciary exception. 

I hope I have been of assistance. 


Kristin O’Neill

Assistant Director