FROM: Robert J. Freeman, Executive Director
RE: Advisory Opinion
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your correspondence and apologize for the delay in response.
By way of background, in a letter sent to William Kalish, Chief Clerk of the Bronx County Criminal Division, you referred to an article in the New York Law Journal in which it was reported that since February of this year, judges in New York City have been required “to keep track of hearings in which judges suppress evidence gathered from illegal searches or find that police officers provided testimony on the stand that was deemed lacking in credibility.” Rather than responding directly, the Clerk forwarded the request to the Office of Court Administration. Its records access officer, attorney Shawn Kerby, indicated that your request “is not consistent with record keeping practices of this Office or the clerks of the court, and neither FOIL nor section 255 of the Judiciary Law require the compilation of information or creation of records.”
From my perspective, assuming the accuracy of the New York Law Journal article and the intent of the directive to “keep track” of certain events, both the failure of the Clerk to respond and the nature of the response by Ms. Kerby raise a series of issues. In this regard, I offer the following comments.
First, the Freedom of Information Law (FOIL) applies to agencies, and §86(3) of that statute defines the term “agency” to mean, in brief, entities of state and local government. The definition specifically excludes the judiciary, and the term “judiciary” is defined in §86(1) to mean “the courts of the state.”
Second, although the courts are excluded from the coverage of FOIL, other statutes often require the disclosure of court records, and §255 of the Judiciary Law provides that:
"...[A] clerk of a court must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts or certificates of change therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, can not be found."
Based on the foregoing, when records are in the custody of a court clerk, unless a separate statute prohibits disclosure and subject to the qualification to be considered later, the clerk is, in my view, required to disclose the records sought.
Third, it was established years ago that the Office of Court Administration is an “agency” required to give effect to FOIL [see Babigian v. Evans, 97 AD2d 992 (1983)]. Additionally, the Court of Appeals, the state’s highest court, has held that records emanating from a court that come into the possession of an agency are agency records that fall within the scope of FOIL [Newsday v. Empire State Development Corporation, 98NY2d 359 (2002)].
Next, to reiterate, Ms. Kerby wrote that your request “is not consistent with record keeping practices of the Office or the clerks of the court…” The standard in FOIL involves the obligation of a person seeking records to “reasonably describe” the records sought. Significant in my opinion is the decision rendered by the Court of Appeals in Konigsberg v. Coughlin [68 NY2d 245 (1986)]. In my view, the decision stands for two essential principles. First, insofar as an agency can locate and identify records with reasonable effort, a request would meet the standard that it must reasonably describe the records sought. Second, the Court suggested that whether or the extent to which a request meets that standard may be dependent on the nature of an agency's filing, indexing or retrieval systems. It has been advised that an agency need not search through the haystack in an effort to find the needles, even if it is known that the needles are there, somewhere.
If indeed there is or was instruction to “keep track” of the records requested, and if the Clerk of the court does not maintain the records in a manner in which they can be found with reasonable effort, it would appear that the directive to do so is not being honored. Similarly, if the Office of Court Administration maintains the records at issue on behalf of courts, the obligation to maintain them in a manner in which they can be located with reasonable effort would appear to be inherent in the directive.
In short, absent the ability to locate and retrieve the records in question, it would appear that the intent of the directive to keep track of those records is not being given effect.
In an effort to encourage reconsideration of the matter, copies of this response will be sent to Chief Clerk Kalish and Attorney Kerby.
I hope that I have been of assistance.