This is a CPLR article 78 proceeding, brought by petitioner, Family Justice Law Center, against respondent, the New York State Office of Court Administration (OCA).

As alleged in the petition, petitioner is concerned about delays in Family Court emergency removal hearings held under Family Court Act §§ 1027 and 1028. Petitioner seeks to provide OCA with recommendations to remedy the delays. To develop these recommendations, petitioner submitted to OCA several requests under the New York Freedom of Information Law (FOIL). Petitioner's second request was for "[a]ny memos or directives sent electronically from any family court judge in New York City to attorneys practicing before them in the last eight years that concerned the scheduling of FCA §§ 1027 and 1028 hearings" (request #2). (NYSCEF No. 4 at 2.)

OCA denied request #2 on the ground that "all requested records are records of the Judiciary, which are not subject to FOIL." (NYSCEF No. 5 at 3.) OCA denied petitioner's appeal for the same reason. (NYSCEF No. 7 [FOIL appeal decision].)

Petitioner then brought this article 78 proceeding to challenge OCA's denial of its FOIL request #2. The petition is denied, and the proceeding is dismissed.

FOIL's purpose is to provide the public with "access to the records of government." (Public Officers Law [POL] § 84.) Records include "information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature." (Id. § 86 [4].) The statutory definition of "agency" encompasses "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." (Id. § 86 [3] [emphasis added].) And, unlike FOIL's section governing access to records of the state legislature (see id. § 88), the statute does not include a separate section providing for disclosure of judicial records. Instead, the judiciary—defined as "the courts of the state, including any municipal or district court" (id. § 86 [1])—is not subject to FOIL in the first instance.^[FN1] (See Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362-363 [2002].)

1. Petitioner argues that OCA's denial was affected by an error of law, and is therefore arbitrary and capricious for purposes of CPLR 7803 (3), because the documents petitioner seeks are subject to disclosure. Petitioner contends that because OCA is not part of the judiciary, "any of the records in its possession are subject to disclosure under FOIL unless subject to another exemption." (NYSCEF No. 2 at 7.) OCA agrees that it is not part of "the judiciary" as defined in POL § 86, but is instead an "agency" within the statute's meaning. OCA contends that it nonetheless properly denied petitioner's request because it "is not the creator or custodian of the records that Petitioner seeks." (NYSCEF No. 19 at 5.) According to OCA, those records were "created by Family Court judges who are not part of OCA, and were not provided to OCA." (Id. at 6.)

The parties agree that if OCA possess records generated by the judiciary, those records would be subject to disclosure unless otherwise exempt. (See Matter of Newsday, 98 NY2d at 362-363 [holding that judicial subpoenas are not subject to FOIL when those documents are in the sole possession of the issuing court, but that the subpoenas must be disclosed by any agency that later possesses them].) But OCA's FOIL appeals officer represents in this proceeding that he determined in the course of considering petitioner's administrative appeal that "OCA did not have records responsive to Request #2" and that petitioner's "allegations that OCA is in possession of such records [are] inaccurate." (NYSCEF No. 20 at ¶ 8; see also id. at ¶ 7 [describing his "investigation of the underlying FOIL request and OCA's response].)

Petitioner argues that if OCA possesses no responsive records, it should have explicitly said so in its denials, as opposed to characterizing the documents sought as "records of the judiciary" not subject to disclosure. (See NYSCEF No. 22 at 2-4.) OCA's FOIL appeals officer represents in his affirmation in this proceeding, though, that in responding to FOIL requests for judicial records, "it is OCA's practice to deny such requests as being records of the judiciary rather than stating that OCA cannot locate any responsive records, which is equally accurate [*2]because OCA is not the custodian of judiciary records." (NYSCEF No 20 at ¶ 9.) In other words, OCA is representing that its practice, when not in possession of records originally generated by the judiciary, is to deny FOIL requests for those records on the ground that they are judiciary records.

Petitioner argues that this response "indicates the agency's misapprehension of its FOIL obligations." (NYSCEF No. 22 at 2.) Petitioner contends that "[i]f the memos are in OCA's possession, OCA cannot decline to produce them" as "records of the judiciary." (Id. [emphasis added].) But OCA expressly represents that if the memos "had been sent to OCA officials or employees, OCA would have disclosed such records as its own or withheld them if they were exempt for other reasons." (NYSCEF No. 20 at ¶ 10.) And petitioner does not provide a basis to conclude that this representation is inaccurate.^[FN2]

At most, petitioner asserts that the appeals officer's affirmation itself describes New York City Family Court Administrative Judge Anne-Marie Jolly and some of her staff as OCA officials. (See NYSCEF No. 22 at 3.) This court reads the affirmation differently. The relevant paragraph says that OCA's first-level FOIL officer, in preparing the response to petitioner's requests, spoke with Administrative Judge Jolly and her Chief Counsel, the Family Court's Chief Clerk, "and other OCA officials familiar with Family Court practices." (NYSCEF No. 20 at ¶ 7.) Read in context, this statement does not say that Judge Jolly and her staff are themselves OCA officials. It states, instead, that the first-level FOIL officer (herself an OCA employee) spoke with Judge Jolly and staff, and also spoke with OCA officials familiar with Family Court practices.

2. Petitioner further contends that the memos at issue are subject to disclosure because, for FOIL purposes, the administrative judges who sent (and received) the memos should be understood as part of OCA, not as part of "the judiciary." (See NYSCEF No. 22 at 5-7.) This contention is unpersuasive.

The Judiciary Law and its implementing regulations treat OCA and the various administrative/supervising judges as legally and organizationally distinct from one another. Judiciary Law § 212 sets out the functions and powers of the chief administrative judge.^[FN3] Section 212 (1) (b) provides that the chief administrative judge shall have the power to "[e]stablish an administrative office for the courts [i.e., OCA] and appoint and remove such deputies, assistants, counsel and employees as he may deem necessary." Separately, § 212 (1) (d) provides that the chief administrative judge shall have the power to "[d]esignate deputy chief administrators and administrative judges for any or all of the courts of the unified court system, except the appellate [*3]divisions and the court of appeals." Similarly, the details of the chief administrative judge's authority to designate administrative/supervising judges are spelled out by 22 NYCRR 80.1 (b) (4) and 80.2, whereas his authority over OCA is described in 22 NYCRR 80.1 (b) (8).

Petitioner emphasizes that both OCA and the courts' administrative and supervising judges are appointed by, under the authority of, and accountable to New York's chief administrative judge; and that administrative and supervising judges are responsible for non-adjudicatory management of the courts that they oversee. (See NYSCEF No. 22 at 5-6.) Both these points are true. But just because OCA and administrative/supervising judges each ultimately report to the chief administrative judge, and each perform non-adjudicatory functions, does not mean that they are part of the same office or perform the same functions.^[FN4] Nor does petitioner provide any other basis to conclude that administrative/supervising judges are part of OCA for FOIL purposes, rather than part of the courts that they oversee.

OCA has represented, without refutation, that it does possess any of the requested memos. And the senders and recipients of the memos are within the judiciary, not within OCA. Respondent properly denied petitioner's FOIL request for those memos.^[FN5]

Accordingly, it is

ORDERED that the petition is denied, and this CPLR article 78 proceeding is dismissed, no costs; and it is further

ORDERED that respondent serve a copy of this order with notice of its entry on petitioner and on the office of the County Clerk (using the NYSCEF document type "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.