March 8, 1996


Mr. Bruce L. Hoffman
Mohawk Corr. Facility
PO Box 8451
Rome, NY 13442

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. Hoffman:

I have received your letter of February 20. You have sought guidance concerning "the use of FOIA, PA or Public Officers Law to obtain records kept by government of court proceedings against a citizen." You referred specifically to requests to a county clerk for minutes of a criminal proceeding.

In this regard, I offer the following comments.

First, the "FOIA" and "PA" are, respectively, the federal Freedom of Information and Privacy Acts. They apply only to records maintained by federal agencies; they do not apply to federal, state or local courts.

It is assumed that your reference to the Public Officers Law pertains to the New York Freedom of Information Law. That statute 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."

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."

Based on the provisions quoted above, the courts and court records are not subject to the Freedom of Information Law. This is not to suggest that court records are not generally available to the public, for other provisions of law (see e.g., Judiciary Law, §255) may grant broad public access to those records. Even though other statutes may deal with access to court records, the procedural provisions associated with the Freedom of Information Law (i.e., those involving the designation of a records access officer or the right to appeal a denial) would not ordinarily be applicable.

An office of a district attorney, or a police or sheriff's department, would clearly constitute an "agency" required to comply with the Freedom of Information Law. However, I note that in Moore v. Santucci [151 AD 2d 677(1989)], it was found that the office of a district attorney "is not required to make available for inspection or copying any suppression hearing or trial transcripts of a witness' testimony in its possession, because the transcripts are court records, not agency records" (id. at 680).

Lastly, as you may be aware, county clerks perform a variety of functions, some of which involve county records that are subject to the Freedom of Information Law, others of which may be held in the capacity as clerk of a court. An area in which the distinction between agency records and court records may be significant involves fees. Under the Freedom of Information Law, an agency may charge up to twenty-five cents per photocopy, "except when a different fee is otherwise prescribed by statute". In the case of fees that may be assessed by county clerks, §§8018 through 8021 of the Civil Practice Law and Rules require that county clerks charge certain fees in their capacities as clerks of court and other than as clerks of court. Since those fees are assessed pursuant to statutes other than the Freedom of Information Law, the fees may exceed those permitted by the Freedom of Information Law. Section 8019 of the Civil Practice Law and Rules provides in part that "The fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services...".

I hope that the foregoing serves to clarify your understanding and that I have been of assistance.



Robert J. Freeman
Executive Director