1 No. 76
In the Matter of Newsday, Inc.,
Appellant,
v.
Empire State Development Corporation,
Respondent.
_________________________________________________________________
2002 NY Int. 76
June 13, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Randy M. Mastro, for appellant.
Antovk Pidedjian, for respondent.
Associated Press, et al., amici curić.
_________________________________________________________________
LEVINE, J.:
Newsday, Inc. appeals from an order of the Appellate Division
reversing Supreme Court and dismissing its petition, brought under the
Freedom of Information Law (Public Officers Law art 6, §§ 84-90)
(FOIL), against the Empire State Development Corporation (ESDC).
Newsday sought to compel ESDC to release copies of subpoenas duces
tecum in its possession, which had been served by the New York County
District Attorney's Office in the course of an investigation of ESDC.
Supreme Court ruled that the subpoenas were not immune from
disclosure, having been issued by the District Attorney's office, an
agency subject to FOIL. The Appellate Division, however, concluded
that, because a "'subpoena is nevertheless a mandate of the court
issued for the court'" (283 2 182, 183 (quoting People v Natal, ,
75 NY2d 379, 384-385, cert denied 498 US 862 (1990)), it remains
a judicial record which need not be disclosed because "the judiciary
is exempt from the reach of FOIL."
We disagree. ESDC is not part of the Judiciary. It does not claim to
have been acting on behalf of the Judiciary within a judicial process.
Nor does it contend that any of the statutory exemptions from access
to records set forth in Public Officers Law § 87(2) apply.
Therefore, it is a governmental entity subject to FOIL and must
disclose the subpoenas in its possession, irrespective of whether they
are deemed to have been a mandate of a court and issued for a court.
SNIPPETS:
In the Matter of Newsday, Inc., Appellant, v. Empire State Development Corporation,
Newsday, Inc. appeals from an order of the Appellate Division reversing Supreme Court and
Newsday sought to compel ESDC to release copies of subpoenas duces tecum in its possession,
Supreme Court ruled that the subpoenas were not immune from disclosure, having been issued by
The Appellate Division, however, concluded that, because a "'subpoena is nevertheless a
Nor does it contend that any of the statutory exemptions from access to records set forth in
Therefore, it is a governmental entity subject to FOIL and must disclose the subpoenas in its
This conclusion is supported by the statutory structure of FOIL, the literal meaning of its
The legislative purpose is mainly accomplished through the definitions of "Agency" and
An agency comprehensively includes "any state or municipal department, board, bureau,
The Judiciary and the State Legislature are expressly excluded from the agency definition,
Similarly, "Record" is broadly defined to include "any information kept, held, filed,
Our conclusion is fortified by the holding in Matter of Capital Newspapers v Whalen ), which
In that case, the newspaper sought release under FOIL of the "Corning Papers" -- the 900,000
"Respondents argue that the Corning papers are not 'record' because the papers were kept by
Petitioner did not, however, request disclosure of the Corning Papers while they were being
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