August 21, 1996



Mr. Thomas E. Walsh, II
Assistant County Attorney
County of Rockland
Department of Law
Allison-Parris County Office Building
New City, NY 10956

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. Walsh:

I have received your letter of August 13. You have asked whether in my view "the Rockland County Commissioner of Finance, when acting as a public administrator, is required to comply with the FOIL Law." If that statute applies, you asked further whether information pertaining to a distributee, devisee or legatee, or information gathered in attempts to locate those persons, may "be deleted as an unwarranted invasion of personal privacy."

From my perspective, records maintained by the Commissioner acting in his capacity as public administrator would fall within the coverage of the Freedom of Information Law. In this regard, I offer the following comments.

First, as you are aware, 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."

Based on the foregoing, 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, a public administrator, as the title suggests, performs administrative functions relative to surrogates' courts. Particularly in a situation in which the public administrator is a non-judicial municipal employee, as in this case, it would appear that any documents that he maintains would constitute agency records within the coverage of the Freedom of Information Law.

Second, viewing the matter from a different vantage point, the term "record" is defined broadly in §86(4) of the Freedom of Information Law to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

In the context of your inquiry, any documentation "kept" or "held" by the Commissioner, an employee of the executive branch of county government, would in my opinion constitute an agency record subject to rights conferred by the Freedom of Information Law.

Lastly, assuming that preceding analysis is accurate, I note that 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.

As you suggested, the only apparent potential ground for denying access to records or perhaps portions of records maintained by a public administrator would be §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would result in "an unwarranted invasion of personal privacy."

While I am unfamiliar with the specific records that may be kept by a public administrator, I believe that insofar as those records include information reflective of or equivalent to records available from a surrogate's court, the public administrator would be required to disclose. Section 2502 of the Surrogate's Court Procedure Act states that: "The clerk shall keep and maintain:

1. A record book properly indexed in which shall be entered a description of every proceeding with proper entries under each denoting the papers filed, orders and decrees made and the steps taken therein, with the dates of filing and recording the several papers in the proceeding.

2. Such other record books, properly indexed, as may be necessary or convenient to record at length any documents required by law to be recorded.

3. A court and trust fund register in which shall be entered a reference to any proceeding in which a decree or order directs a deposit of money, the date thereof, the amount thereof, the amount so deposited, any receipt therefor and the name of the person to and for whom the deposit is made.

4. A record book, properly indexed, with proper entries denoting the name and file number of the estate and the date of filing any informal account or any release pursuant to 2202.

5. Such other books as the chief administrator of the courts in each department or the court in each county may direct to be kept."

Additionally, subdivision (8) of §2501 provides that "All books and records other than those sealed are open to inspection of any person at reasonable times."

During our discussion of the matter, you expressed concern with respect to the disclosure of records developed or gathered in the process of attempting to locate distributees, legatees or devisees. In my view, it is likely that disclosure of names of or other identifying details pertaining to persons ancillary to the distribution of the assets of an estate, such as the heirs of those persons, other family members, or neighbors, friends, or acquaintances could justifiably be withheld as an unwarranted invasion of privacy. Again, however, information maintained by the public administrator that is also maintained and made available by the court clerk would in my opinion be accessible under the Freedom of Information Law from the public administrator.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: George W. Renc, Commissioner of Finance