December 26, 1995



Mr. Peter W. Sluys
Managing Editor
Community Media Inc.
25 W. Central Avenue
Pearl River, NY 10965

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, unless otherwise indicated.

Dear Mr. Sluys:

I have received your letter of November 29 in which you questioned the "applicability of the Freedom of Information Law under the following facts and circumstances."

According to your letter:

"In the course of an investigation into the operations of the Rockland County Family Court and the ancillary agencies that comprise the court and its bureaucracy, Investigative Reporter James Leman made application to the Appellate Division, Second Department for the vouchers of persons paid through the Family Court including experts, investigators, law guardians, attorneys and the like.

"The request was restricted to the personnel so paid through and including the Ninth Judicial District, but Mr. Brownstein has refused to release the information saying that 'Your request to view Family Court vouchers is denied. See Public Officers Law Section 86 [3].'"

You suggested that "[t]here is no question that the information herein may be redacted as to the case name involved, but there is equally no question that payments made to public officials by public agencies are absolutely a matter of public record." Consequently, you have sought my views concerning the propriety of a claim [of] a blanket exemption for the vouchers paid through the Family Court pursuant to Public Officers Law Section 86[3]."

In this regard, I offer the following comments.

First, as you may be aware, 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."

If the records in which you are interested are maintained by a court and can be characterized as court records, the Freedom of Information Law in my opinion would not apply. It has been determined that the Office of Court Administration is not a court, but rather is an "agency" and, therefore, is subject to the Freedom of Information Law [see Babigian v. Evans, 427 NYS 2d 699, aff'd 97 AD 2d 827 (1984) and Quirk v. Evans, 455 NYS 2d 918, 97 AD 2d 992 (1983)]. As its name suggests, that entity oversees and administers the court system. In this instance, it appears that the records sought are part of or derived from case files and are maintained by a court. I know of no judicial decision that would deal squarely with the situation in relation to the application of the Freedom of Information Law, and I cannot advise with certainty as to the status of the records under that statute.

Second, however, even if the Freedom of Information Law applied, a key issue based on the response to your request by Martin H. Brownstein, Clerk of the Court, and a representative of the Office of Court Administration, would be whether you met the requirement that a request "reasonably describe" the records sought. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number. In this instance, I was informed that thousands of vouchers are filed each year and that they are not filed by judicial district. It is my understanding that court personnel would have to review every voucher in order to locate those pertaining to the Ninth Judicial District. If that is so, I do not believe that your request would have reasonably described the records in accordance with §89(3) of the Freedom of Information Law, even if that state were found to be applicable.

Third, while court records are generally available, §166 of the Family Court Act, entitled "Privacy of records", states in relevant part that "[t]he records of any proceeding in the family court shall not be open to indiscriminate public inspection", and you suggested that "[t]here is no question that the information herein may be redacted as to case name involved." In addition, I have been informed that the vouchers include the social security numbers and home addresses of attorneys. If the Freedom of Information Law were found to apply, those personal details, perhaps as well as those identifying parties to the proceedings, could be withheld pursuant to §87(2)(b) on the ground that disclosure would constitute "an unwarranted invasion of personal privacy." Therefore, irrespective of whether the Family Court Act or the Freedom of Information Law governs access, I do not believe that you would have the right to inspect the records, because they include information that could justifiably be withheld.

In analogous situations that have arisen under the Freedom of Information Law, it has been advised that an applicant cannot inspect records but rather may obtain photocopies from which various details might be deleted. It has also been advised that in such a circumstance, the entity could charge its established fee for photocopying.

Due to the lack of clarity regarding the statute that might govern and the impediments that exist regardless of which statute applies, it is suggested that you reconsider the offer made by Mr. Brownstein under which he would "provide a list of law guardians, the amounts received and the number of cases", which would be "essentially the information that could be obtained from the voucher itself."

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Martin H. Brownstein
John Eiseman