March 27, 2002
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
I have received your letter in which you explained that the Geneva Free Library has not responded to your request under the Freedom of Information Law.
In this regard, while many "public libraries" are subject to the Freedom of Information Law, some may not be covered by that statute.
The Freedom of Information Law is applicable to agency records, and §86(3) of that statute defines the term "agency" to mean:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office of other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
Based on the foregoing, the Freedom of Information Law generally applies to records maintained by governmental entities.
Based on §253 of the Education Law and judicial interpretations concerning that and related provisions, I believe that a distinction may be made between a public library and an association or free association library. The former would in my view be subject to the Freedom of Information Law, while the latter would not. Subdivision (2) of §253 states that:
"The term 'public' library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term 'association' library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term 'free' as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located."
Lastly, this office has not received a copy of your appeal or appeal determination from the Department of Correctional Services.
I hope that I have been of assistance.