Opinion 13-183

December 12, 2013

Digest:         A judge may permit the local prosecutor to access court files in the same manner as all other attorneys and members of the public, in accordance with applicable law.

Rules:          Judiciary Law § 255-b; Uniform Justice Court Act § 2019-a; 22 NYCRR 100.1; 100.2; 100.2(A); Opinions 13-33; 13-19; 11-112; 09-94; 09-38; 07-115; 00-95 (Vol. XIX); Joint Opinion 07-185/08-68/08-77.

Opinion:

         A part-time town/village justice states the local prosecutor “would like access to Court files for Vehicle and Traffic cases where defendants have been ‘scoffed’ (reported to [the Department of Motor Vehicles] to be suspended) for failure to pay an imposed fine.” The prosecutor advised the judge that he/she intends to send such defendants a letter on the municipality’s letterhead (without any reference to the justice court) suggesting defendants contact the prosecutor to negotiate a resolution of the pending matter. The judge asks if he/she may permit such access.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2 [A]).

         The Committee has advised that judges “must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’ (Opinion 13-33 quoting Opinion 00-95 [Vol. XIX]). For example, a court should not create or compile a list of “scoffed” defendants at a local law enforcement agency’s request (see Opinion 13-19); should not comply with a district attorney’s request to review lists of cases compiled by the district attorney’s office and indicate the status of each case for the district attorney’s convenience (see Opinion 09-94); should not provide a district attorney with an annotated court calendar in advance of court night indicating each defendant’s prior driving record (see Opinion 09-38); and should not provide the district attorney each month with a list of all open cases pending in the justice’s court (see Opinion 07-115). The common thread throughout these opinions is that collecting or preparing information “specifically and exclusively for the benefit” of the prosecutor (Opinion 07-115) could compromise public confidence in the judiciary’s integrity, impartiality and independence, and create an appearance of impropriety (see Opinions 13-19; 09-94; 07-115; 22 NYCRR 100.1; 100.2; 100.2[A]).

         Conversely, the Committee has also recognized that providing access to existing court records in a non-partisan manner “is wholly consistent with the statutory provisions requiring court records and dockets to be open to reasonable public inspection” (Joint Opinion 07-185/08-68/08-77, citing Judiciary Law §255-b; Uniform Justice Court Act § 2019-a). For example, the Committee has 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 (see Joint Opinion 07-185/08-68/08-77); and that a court may respond to inquiries from the district attorney, public defender or other attorneys about the status of specific cases, either by providing publicly available information, or by inviting the attorneys to “obtain the requested case dispositions by visiting the courthouse during regular court hours to review the court’s records” (Opinion 09-94).¹

         Of particular relevance here, the Committee has advised that “if the records the law enforcement agency seeks [concerning ‘scoffed’ defendants] are available to the public, agency staff may access them in accordance with applicable law” (Opinion 13-19). Accordingly, the inquiring judge may permit the local prosecutor to access court files in the same manner as all other attorneys and members of the public, in accordance with applicable law (see Opinions 13-19; 09-94). Such activity is not rendered impermissible merely because the prosecutor plans to contact certain vehicle and traffic defendants and invite them to contact the prosecutor directly to negotiate a resolution of the outstanding matter (compare Opinion 11-112 [impermissible for court to allow prosecutor to direct defendants to mail completed plea agreements to court, rather than to prosecutor, for signature by assistant district attorney]).

________________________

     ¹ In essence, Opinion 09-94 distinguishes between the permissible activity of responding to occasional inquiries from attorneys or the public about the status of a specific case, and the impermissible activity of regularly advising the prosecutor about the status of his/her caseload by marking up the prosecutor’s list of cases to indicate the disposition of each one.