102 A.D.2d 395 | N.Y. App. Div. | 1984
Petitioner sat for the New York State Bar Examination on February 24 and 25, 1981. He was notified on May 21, 1981 by respondent, which had conducted the examination, that he had passed. He thereafter filed application with this department for admission to the Bar. After examination by our Committee on Character and Fitness, he was certified to this court for admission. On July 7, 1981, he was duly admitted to the Bar of this State.
Some three weeks after his admission, petitioner wrote to respondent, the State Board of Law Examiners, requesting that he be informed under the Freedom of Information Law ([FOIL]; Public Officers Law, § 84 et seq.) of (a) his score on the multistate section of the examination, including his score for each of the six subjects encompassed by the examination; (b) his score on the New York short answer section of the examination; (c) his score on each of the six essay questions; and (d) his percentile rank among all passing scores in the multistate, New York short answer and essay sections, and over-all rank. By letter dated August 7, 1981, respondent, through its executive secretary, notified petitioner of his scores on the Multistate Bar Examination. It also informed him that “[n]either a breakdown by subject from the Multistate exam, nor scores from the New York portion of the bar examination are made available to those who pass.” The letter made no reference to petitioner’s percentile rank in the various examinations nor did it refer to petitioner’s over-all rank. Petitioner answered by letter dated August 25, 1981 demanding that respondent “fully explain in writing * * * the reasons for further denial, or provide access to the record[s] sought” (Public Officers Law, § 89, subd 4, par [a]). In that letter, he supplemented his demand by requiring that he be provided with “true and correct copies of each of my essays with the scores for each indicated thereon.” On September 8, 1981, the Board of Law Examiners responded asserting that “as part of the judicial branch of government” it was not subject to FOIL.
Petitioner then commenced this CPLR article 78 proceeding to review the determination of respondent. In his
Respondent moved to dismiss the amended petition on the ground that it failed to state a cause of action upon which relief may be granted. Special Term granted the motion to the extent only of excusing respondent from producing records which it did not compile
We start with the premise that a governmental body seeking an exemption from the disclosure requirements of FOIL is required to establish its right thereto (Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575). “Only where the material requested falls squarely within the ambit of one of [the] statutory exemptions may disclosure be withheld.” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571.)
The preamble to FOIL (Public Officers Law, § 84) contains a broad declaration of the right of the public, individually and collectively, and represented by a free press, to have access to the records of government. Subdivision 3 of section 86 defines the term “agency” in all inclusive terms. However, it expressly excludes from the definition the judiciary which, in subdivision 1 of that section is defined to mean “the courts of the state, including any municipal or district court, whether or not of record.” Section 87 deals with access to agency records and enumerates the specific types of records which are exempt from disclosure. Section 88 provides for the kinds of records required to be kept by the Legislature and mandates the adoption, by the Temporary President of the Senate and the Speaker of the Assem
We are, therefore, directly confronted with the issue of whether the State Board of Law Examiners is an “agency”, as that term is defined in subdivision 3 of section 86 of the Public Officers Law or whether, in the discharge of its duties it is exercising a judicial function and, therefore, part of the “judiciary”.
The briefs of the parties cite a plethora of authority, none of which is directly in point. Nor, from our own research have we been able to find such authority. Accordingly, we are compelled to analyze the nature of the process whereby a candidate for admission to the Bar is admitted to the office of attorney and counselor at law, and the relationship of the Board of Law Examiners to that process.
In 1777, shortly after the colonies had severed the umbilical cord which tied them to the English Crown, the State of New York adopted its first Constitution. That Constitution expressly delegated to the courts the power to admit attorneys to the practice of law. The Constitution of 1822 was silent on the subject. By consequence, it vested in the Legislature the power to deal with the matter (Matter of Cooper, 22 NY 67, 90).
Thus, the process of admission, from its inception to the administration of the oath of office, follows in a single unbroken line, all, pursuant to section 53 of the Judiciary Law, under the aegis of the Court of Appeals. Each component part is a delegated part of the judicial process acting pursuant to the authority of the Court of Appeals in accordance with section 53 of the Judiciary Law, and each performs a judicial function. Accordingly, each is exempted from the ambit of FOIL.
To sustain his position, petitioner relies in the main on Babigian v Evans (104 Misc 2d 140, affd 97 AD2d 992). That case is, however, clearly distinguishable. There, petitioner, a court employee, sought information from the Office of Court Administration (OCA) in connection with impending collective bargaining negotiations between associations of court employees and OCA. OCA granted most of the information sought. Special Term granted Babigian’s request for the remaining items, rejecting the claim that OCA was exempt from FOIL. We affirmed, without opinion. The Constitution, as amended in 1977 (NY Const, art VI, § 28), created the office of Chief Administrator of the Courts. Section 212 of the Judiciary Law makes it plain that his duties, and the duties of his office, are ministerial
The State Board of Law Examiners, on the other hand, has substantial discretionary power within the ambit in which it operates. It selects the subjects upon which the Bar examination is based. It formulates the questions posed by those examinations. In sum, it formulates and grades one of the elements — the Bar examination — which is part of the process which leads to admission.
As we made clear in Matter of Sugarman (51 AD2d 170), the process of admission from its inception to its culmination is a judicial function. We do not think that the Legislature, by its enactment of FOIL, intended to interfere with the historic relationship between the courts and the Bar by making available to anyone who might seek the information one of the essential bases on which admission is bottomed.
Additionally, the potential for mischief in any other holding is so apparent that discussion thereof is unnecessary (see Matter of Social Servs. Employees Union v Cunningham, 109 Misc 2d 331, affd without opn 90 AD2d 696). We conclude, therefore, that respondent has sustained the burden cast upon it (Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, supra) and that the material demanded falls within the ambit of exempt material (Matter of Fink v Lefkowitz, 47 NY2d 567, supra).
Accordingly, the orders of the Supreme Court, New York County (Arthur E. Blyn, J.), entered January 10,1983 are modified on the law and petitioner’s petition dismissed, in toto, without costs. Appeal from order denying reargument should be dismissed, without costs as nonappealable.
Sandler, J. P., Sullivan, Carro and Fein, JJ., concur.
Order and judgment (one paper), Supreme Court, New York County, entered on January 10, 1983, unanimously modified, on the law, and petitioner’s petition dismissed, in toto, without costs and without disbursements. The appeal
. Petitioner’s percentile or other rank among examination scores.
. The Multistate Bar exam and petitioner’s answers thereto.
. For an excellent and detailed study of the history of the relationship of the courts to the examination of applicants for admission to the Bar see Matter of Brennan (230 App Div 218).