Opinion 23-210

February 1, 2024

Digest:  A judge may, subject to administrative approval, designate a publicly available folder in the court clerk’s office to contain duplicate copies of the court’s non-sealed written criminal decisions in chronological order.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(C)(1); Opinions 13-183; 07-185/08-68/08-77; 07-115.

Opinion:

          A judge who presides in many criminal cases asks if it is ethically permissible to “make criminal decisions more easily available to the public” by designating a new folder in the court clerk’s office to contain duplicate copies of “all of the court’s non-sealed written criminal decisions” in chronological order by date of decision filing.  The new folder would be in addition to the court’s regularly maintained criminal case files.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must maintain professional competence in judicial administration, and “should cooperate” with other judges and court officials in the administration of court business (22 NYCRR 100.3[C][1]).

          We have advised that a judge may not “create, maintain and/or produce” information about court cases “specifically and exclusively for the benefit of the District Attorney’s Office” (Opinion 07-115).  Preferential access to court files “could compromise public confidence in the judiciary’s integrity, impartiality and independence, and create an appearance of impropriety” (Opinion 13-183).

          Conversely, we have “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” (id. [emphasis added, internal quotation marks and citation omitted]).

          Accordingly, this judge may, subject to administrative approval, designate a folder in the court clerk’s office for the duplicate filing of non-sealed written criminal decisions to the extent that the records would be available to all record seekers in the same manner (cf. Opinion 13-183).  The designated folder would remain “subject to applicable confidentiality protections for personal information contained in those records” (Opinion 13-183, citing Opinion 07-185/08-68/08-77).

          We emphasize that whether and how to implement the proposed folder are questions of administrative policy and logistics.  “This opinion responds only to the ethical propriety of the actions proposed” by the inquiring judge and “does not mandate – nor should it – that all [criminal] courts must prepare and provide documents” in the manner described (Opinion 07-185/08-68/08-77).