March 14, 1996



Mr. Philip Pizzuti
413 First Avenue
Pelham, NY 10803

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. Pizzuti:

I have received your letter of February 22. You have asked whether in my view, you have the right to obtain from the Westchester County Public Administrator "the name of each estate" for which the Public Administrator "retained an attorney for the year 1995 and the name of the attorney...retained for each estate."

In this regard, I offer the following comments.

First, the Freedom of Information Law applies 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 "judiciary" to mean:

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

As such, the courts are not subject to the Freedom of Information Law. However, it is my understanding that an office of public administrator is not a court. By means of analogy, however, I point out that it has been held that the Office of Court Administration is an "agency" required to comply with the Freedom of Information Law. The initial decision on the subject, which cited an advisory opinion prepared by this office, included the following discussion of the matter:

"The court must look to the intent of the legislature to determine whether the Office of Court Administration, in the exercise of a purely administrative and personnel function, is to be excluded from the applicable provisions of the Freedom of Information Law. Public Officers Law §84 states in part 'The people's right to know the process of governmental decisionmaking and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.'

"In view of the legislative purpose to promote open government, the court is inclined to construe narrowly any section that would tend to exclude offices of government from the law. Public Officers Law §86 specifically refer to courts when it defines 'Judiciary.' The legislature did not include the administrative arm of the court. The Office of Court Administration does not exercise a judicial function, conduct civil or criminal trials, or determine pre-trial motions. Respondent is not a 'court.'

"It is significant to note that respondent refers to several sections of the Judiciary Law that regulate access to judicial records and allegedly perform a function similar to that of the Freedom of Information Law. None of the sections specified would address access to the information sought by petitioner pertaining to personnel and salaries exclusively.

"Accordingly, the court rejects respondent's contention that it is in all respects exempt from the provisions of the Freedom of Information Law." [Babigian v. Evans, 427 NYS 2d 688, 689 (1980) aff'd 97 Ad 2d 992 (1983); Quirk v. Evans, 455 NYS 2d 918, 97 Ad 2d 992 (1983)].

Like the Office of Court Administration, which administers the court system and is an agency subject to the Freedom of Information Law, the Office of Public Administrator, as its title suggests, performs administrative functions relative to Surrogates' Courts. Consequently, in my view, an Office of Public Administrator constitutes an "agency" required to comply with the Freedom of Information Law.

Second, assuming that the information sought is maintained in a manner in which it can be located and retrieved, I believe that it would be available. 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. From my perspective, none of the grounds for denial could likely be asserted as a means of withholding the information sought.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: George Lambert, Public Administrator