Werfel v. Fitzgerald

• Decision Date: 14 June 1965
• Citation: 23 A.D.2d 306,260 N.Y.S.2d 791
• Parties: In the Matter of Abraham WERFEL, on behalf of himself and all other attorneys at law and the general public, similarly situated, Petitioner-Respondent, v. Matthew FITZGERALD and Julius Weinstock, Clerks of the Criminal Court of the City of New York, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 791

260 N.Y.S.2d 791

23 A.D.2d 306

In the Matter of Abraham WERFEL, on behalf of himself and

all other attorneys at law and the general public, similarly situated, Petitioner-Respondent, v. Matthew FITZGERALD and Julius Weinstock, Clerks of the

Criminal Court of the City of New York, Appellants.

Supreme Court, Appellate Division, Second Department.

June 14, 1965.

Louis J. Lefkowitz, Atty. Gen., New York City, for appellants; Joel Lewittes, New York City, of counsel

Abraham Werfel, pro se.

Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.

PER CURIAM.

The appellants are clerks of the Criminal Court of the City of New York. The petitioner is an attorney. He instituted this article 78 proceeding in the nature of mandamus to compel the appellants 'to keep open during the business hours fixed by law, the docket books, dockets, informations, and files, other than those involving youthful offenders, for search and examination by any person' and 'to post appropriate notices to the public informing it of the right of inspection.' Instead of answering the petition, the appellants elected to move to dismiss it on the grounds of insufficiency and the lack of jurisdiction. From the order denying the motion this appeal has been taken by permission of the Special Term.

For the purposes of the appeal we must assume as true the wellpleaded allegations of the petition. We state them briefly:

The petitioner, an attorney, brings this proceeding which submits a question of common interest to all attorneys and the public. Petitioner became aware of a rule or regulation whereby the 'docket books, dockets, and other files of the Criminal Court' in the custody of the appellants were not available for inspection by the general public or by attorneys, unless an attorney of record who had filed a notice of appearance desired to examine the entries of the docket book and the docket in a particular case. [As used by the parties, the term 'docket book' evidently refers to the record kept by the clerk containing the entries of the proceedings; and the term 'docket' refers to the file of the papers in the proceeding.]

In March, 1963 the petitioner attempted to examine the docket book with respect to cases in which he was not the attorney of record, and the appellant Fitzgerald refused to permit the examination, although he was told by the petitioner that the docket book entries were public records. Later, in March, 1963 Judge Murtagh (the Administrative Judge of the Criminal Court), in response to a letter from the petitioner, wrote that the court records were open to inspection. Thereafter, the docket book was made available to the petitioner, but the dockets were not. The petitioner has been informed by other attorneys that the appellants have refused to make available 'these records' for public inspection.

In November, 1963 petitioner tried to examine the docket book relative to an arrest of one Hubert Williams--a case in which the petitioner was not the attorney of record. Petitioner sought this examination in order to arrange for the appearance of Williams as a witness in the case of James Frazier, who was represented by petitioner; Williams' address was shown in the record and the petitioner needed the address in order to subpoena Williams. The appellant Fitzgerald refused to allow the inspection.

Both appellants continue to refuse the inspection of docket books and dockets to the detriment of the respondents, other attorneys, and the public. The petitioner seeks relief in the form of mandamus compelling the appellants to permit the inspection of the records.

Special Term denied the motion to dismiss, holding that the records in issue were public records and accessible for examination, and that a mandamus proceeding may be commenced by any citizen of the state to enforce the duties of public officers.

Urging reversal and dismissal of the petition, the appellants depend on two points: (1) Though conceding that the docket book is a public record, they argue that the petitioner has not demonstrated that the files of the Criminal Court are open to inspection; and (2) the petitioner may not maintain this proceeding, since he is not specially aggrieved.

We note initially that the concession made by the appellants in their first point does not appear in the record; and that in the absence of an answer denying the allegations of the petition, we are presented with a tacitly admitted pleading which shows that the petitioner was not permitted on occasions to examine the docket book--a public document. Without more, the order below might be sustained, for if a pleading in part states a cause of action, it cannot be dismissed (Lacks v. Lacks, 12 N.Y.2d 268, 271, 238 N.Y.S.2d 949, 950, 189 N.E.2d 487, 488; Keller v. Levy, 265 App.Div. 723, 40 N.Y.S.2d 580; Cathedral Estates, Ltd. v. Purdy, Sup., 207 N.Y.S.2d 770, 774). But, in view of the basic question before us, we think that in doing so, we should be indulging in technicalities to the detriment of the public interest in the subject of this proceeding.

We are told that from a very early period the right of inspection of the records of the king's courts was common to all his subjects, a right that came to be embodied in statute. Later in the reign of Charles II, no copy of an indictment could be made without a special order of the court; yet in the case of a misdemeanor the right to a copy of the pleading was never questioned (Anno., 175 A.L.R. 1260, 1261-1262). However, English law required as a condition to inspection that the applicant show a special interest to be served (Matter of Egan, 205 N.Y. 147, 157, 98 N.E. 467, 470, 41 L.R.A., N.S., 280).

The common law of the United States followed a somewhat different path. On the one hand, Greenleaf in his treatise (1 Greenleaf on the Law of Evidence [15th ed., 1892], vol. 1, § 471, p. 624) has said: 'But in [the] United States no regulation of this kind is known to have been expressly made; and any limitation of the right to a copy of a judicial record or paper when applied for by any person having an interest in it, would probably be repugnant to the genius of American institutions.'

On the other hand, other American courts held that records prior to trial were not available to public inspection until there were proceedings in open court, following which the records were accessible to all persons, whether they had a special interest or not (Anno. 175 A.L.R. 1260, 1267-1268).

Finally, it is stated in Matter of Egan, 205 N.Y. 147, 157, 98 N.E. 467, 470, supra, that in general American courts do not require a showing of special interest by a taxpayer.

In New York the Legislature has enacted statutes which define both the right of inspection of public records, and the manner of the exercise of that right. First, section 144 of the Education Law provides that a public record means any book or paper or map which is the property of the State or any municipality in which any entry is made as required by law or which any public officer or employee has received or is required to receive for filing. ¹

Secondly, section 66 of the Public Officers Law reads as follows:

'A person, having the custody of the records or other papers in a public office, within the state, must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, can not be found.'

Thirdly, section 255 of the Judiciary Law reads as follows: ²

'A clerk of a court must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts or certificates of change therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, can not be found.'

Linked with this provision is § 255-b of the Judiciary Law which states:

'A docket-book, kept by a clerk of a court, must be kept open, during the business hours fixed by law, for search and examination by any person.'

Fourthly, with the foregoing statutory provisions should be read section 51 of the General Municipal Law which in part provides that, subject to reasonable regulations, a taxpayer has the right to inspect all 'books of minutes, entry or account, and * * * other papers * * * filed in the office of, * * * any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation * * *.'

These statutes manifest in our opinion the general policy of our state 'to make available to public inspection and access all records or other papers kept 'in a public office,' at least where secrecy is not enjoined by statute or rule' (Matter of New York Post Corp. v. Leibowitz, 2 N.Y.2d 677, 686, 163 N.Y.S.2d 409, 415, 143 N.E.2d 256, 260). Of course, reasonable regulations may be made by public officers to control the inspection (Matter of Natelson v. Portfolio, 291 N.Y. 290, 295, 52 N.E.2d 440, 442); and the general policy may be superseded by statutes restricting the right in specific areas where secrecy outweighs the public interest in access to information concerning matters before a public official (see, e. g. Matter of Cherkis v. Impellitteri, 307 N.Y. 132, 120 N.E.2d 530 [City Charter exempted reports of Commissioner of Investigations]; Matter of Allen, 205 N.Y. 158, 98 N.E. 470 [City Charter exempted records of Board of Health]; Hale v. City of New York, ...