Opinion 09-94

April 23, 2009

Digest:         A Village Justice should not prepare materials to respond to an information request from a District Attorney’s office. The Village Justice may, however, either telephonically or through in-person visits, permit access to existing court records responsive to such a request, provided that appropriate safeguards for confidential information are respected and the court does not comment on any case. Where possible, non-judicial personnel should respond to such requests.

Rules:         UJCA §2019-a; Judiciary Law §255-b; 22 NYCRR 100.2; 100.2(A); Joint Opinion 07-185/08-68/08-77; Opinions 07-115; 00-65 (Vol. XIX); 96-150 (Vol. XV).

Opinion:

         A village justice was asked by attorneys who appear in his/her court to provide them with information contained in court records. This includes periodically reviewing lists of cases compiled by a district attorney’s office and indicating whether a case is disposed of. According to the judge, he/she does not have a court clerk or other support staff to respond to these requests, but he/she could prepare the requested information. The judge further advises that it would take him/her as long to gather the information for the district attorneys’ office as it would for an assistant district attorney to travel to the courthouse. The judge asks whether it is ethically permissible to comply with these requests and provide the information either in writing or by telephone.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         The Committee previously has advised that a judge should not provide a district attorney with a list of all open cases pending in the justice’s court at least once per month or to provide a district attorney with a schedule or court calendar for each assistant district attorney night/day at least one week in advance, so an assistant district attorney can prepare for court (see Opinion 07-115). Nor is it permissible in cases where the district attorney’s office prosecutes vehicle and traffic offenses for a judge to notify each complainant police officer of the trial date when he/she must testify (see Opinion 96-150 [Vol. XV]). In both these cases, the Committee concluded that doing so risks compromising the independence of the judiciary and public confidence in the integrity and impartiality of the judiciary, as well as creating an appearance of impropriety.

Therefore, the inquiring judge should not comply with the district attorney’s request to periodically review lists of cases compiled by his/her office and indicate whether a case is disposed of. However, this does not mean that a judge may never provide information to a district attorney’s office or to other participants in criminal proceedings about cases pending in the judge’s court.

In Joint Opinion 07-185/08-68/08-77, the Committee advised that a judge may share with lawyers, the parties and the media information that the judge compiles for his/her own use to facilitate court operations, subject to applicable confidentiality protections for personal information contained in those records. In the Committee’s view, sharing such information (id.):

may be the best use of the limited resources available to justice courts. Otherwise, much or most of a court clerk’s time, or the time of a judge who serves in those courts without a court clerk, could be taken up with facilitating access to court records. Further . . . there is no risk of compromising the independence and impartiality of the judiciary - nor the appearance thereof - to do so. In fact, providing such access in the manner in question is wholly consistent with the statutory provisions requiring court records and dockets to be open to reasonable public inspection (see Judiciary Law §255-b; Uniform Justice Court Act § 2019-a).

Therefore, the inquiring village justice may, either over the telephone or through in-person visits, provide information contained in posted or otherwise publicly available documents addressing case dispositions, subject to all applicable statutory provisions concerning confidential information or sealed records, as requested by the district attorney, public defender or other attorneys, but may not otherwise comment on a case (see Joint Opinion 07-185/08-68/08-77). Alternatively, as the court records are open to reasonable public inspection (see UCJA 2019-a), the judge may suggest that the district attorney and his/her staff obtain the requested case dispositions by visiting the courthouse during regular court hours to review the court’s records.

Finally, nothing in this opinion is intended to require judges to respond to requests for information such as those described by the inquiring judge, particularly where judicial resources are scarce. We reiterate that it is best, when possible, for non-judicial personnel, rather than the judge, to produce and/or provide documents maintained by the Court in accordance with governing statutes and rules (see Opinion 00-65 [Vol. XIX]).