May 1, 1995



Mr. Hazen Solomon
Box 149
Attica Corr. Facility
Attica, NY 14011-0149

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.

Dear Mr. Solomon:

I have received your letter of March 20 and the materials attached to it. You referred to two requests made under the Freedom of Information Law, neither of which appears to have been answered. Consequently, you have contended that you have been denied due process and asked that this office "investigate".

One request, which was made to the New York City Department of Correction deals with "copies of the log book dated April 12, 1984...logging incarcerated prisoners in-out of Part 39, Judge Jeffrey M. Atlas, Courtroom, 111 Centre Street, New York, NY. 10013." The other was made to Judge Atlas and pertains to "his trial book notes" of the same date. In this regard, I offer the following comments.

It is noted at the outset that the Committee on Open Government is authorized to provide advice concerning the Freedom of Information Law. The Committee is not empowered to "investigate" or compel an agency to grant or deny access to records.

I point out, too, that the Freedom of Information Law pertains to agency records, and that §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 "judiciary" to mean:

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

Based on the foregoing, I believe that the Department of Correction is clearly an "agency" subject to the Freedom of Information Law. However, the courts and court records are outside the coverage of that statute. This is not to suggest that court records may not be available to the public. On the contrary, they are often available pursuant to statutes other than the Freedom of Information Law. For instance, under §255 of the Judiciary Law, clerks of courts are generally required to disclose records in their custody. It is questionable in my view whether a judge's notes would be required to be disclosed pursuant to a statute concerning access to court records. In a decision dealing notes prepared by a town justice, it was held that the notes were not accessible under §2019-a of the Uniform Justice Court Act, even though that statute provides broad access to justice court records [Herald Companies v. Town of Geddes, 470 NYS 2d 81 (1983)].

With respect to your request to the Department of Correction, as a general matter, the Freedom of Information Law 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 (i) of the Law. Since you are seeking records pertaining to yourself and a public proceeding, I do not believe that there would be any basis for a denial of access. However, §89(3) of the Freedom of Information Law provides in part that the Law pertains to existing records and that an agency need not create a record in response to a request. I have no knowledge as to whether the Department of Correction maintains or has ever maintained the kind of record in which you are interested. If no such records exist, the Freedom of Information Law would not apply.

Lastly, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Hon. Jeffrey M. Atlas
Thomas Antenen, Records Access Officer