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FOIL-AO-13576

August 21, 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.

Dear

I have received your letter of August 7 and the materials attached to it. You have sought an
advisory opinion in your capacity as attorney for the Town of Caroline concerning the status of a
volunteer ambulance corporation under the Freedom of Information and Open Meetings Laws.

By way of background, you wrote that:

"The town has three fire districts which cover most, but not all of the
town. For many years ambulance service was provided to the town
by the Slaterville Volunteer Fire Co. Inc. Slaterville Volunteer Fire
Co., Inc. is the fire department which provides fire protection to the
Slaterville Fire District. The other two fire districts do not provide
ambulance service.

"In 2001 the members of Slaterville Volunteer Fire Co., Inc. formed
Slaterville Ambulance, Inc. under the not-for-profit corporation law.
Members of Slaterville Volunteer Fire Co., Inc. are also members of
Slaterville Ambulance, Inc. Slaterville Ambulance, Inc. does not
contract with any other municipality or fire district to provide
ambulance service. I believe that the vast majority of their funding
comes from the contract with Town."

In this regard, the Freedom of Information Law is applicable to agency records, and §86(3)
defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or 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 pertains to records maintained
by entities of state and local governments.

However, in Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case
involving access to records relating to a lottery conducted by a volunteer fire company, the Court
of Appeals, the state's highest court found that volunteer fire companies, despite their status as not-
for-profit corporations, are "agencies" subject to the Freedom of Information Law. In so holding,
the Court stated that:

"We begin by rejecting respondent's contention that, in applying the
Freedom of Information Law, a distinction is to be made between a
volunteer organization on which a local government relies for
performance of an essential public service, as is true of the fire
department here, and on the other hand, an organic arm of
government, when that is the channel through which such services
are delivered. Key is the Legislature's own unmistakably broad
declaration that, '[a]s state and local government services increase
and public problems become more sophisticated and complex and
therefore harder to solve, and with the resultant increase in revenues
and expenditures, it is incumbent upon the state and its localities to
extend public accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, §84).

"True, the Legislature, in separately delineating the powers and
duties of volunteer fire departments, for example, has nowhere
included an obligation comparable to that spelled out in the Freedom
of Information statute (see Village Law, art 10; see, also, 39 NY Jur,
Municipal Corporations, §§560-588). But, absent a provision
exempting volunteer fire departments from the reach of article 6-and
there is none-we attach no significance to the fact that these or other
particular agencies, regular or volunteer, are not expressly included.
For the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objections cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit" (id. at
579].

Moreover, although it was contended that documents concerning the lottery were not subject to the
Freedom of Information Law because they did not pertain to the performance of the company's fire
fighting duties, the Court held that the documents constituted "records" subject to the Freedom of
Information Law [see §86(4)].

Another decision confirmed in an expansive manner that volunteer fire companies are
required to comply with the Freedom of Information Law. That decision, S.W. Pitts Hose Company
et al. v. Capital Newspapers (Supreme Court, Albany County, January 25, 1988), dealt with the
issue in terms of government control over volunteer fire companies. In its analysis, the Court states
that:

"Section 1402 of the Not-for-Profit Corporation Law is directly
applicable to the plaintiffs and pertains to how volunteer fire
companies are organized. Section 1402(e) provides:

'...a fire corporation, hereafter incorporated under this
section shall be under the control of the city, village,
fire district or town authorities having by law, control
over the prevention or extinguishment of fires therein.
Such authorities may adopt rules and regulations for
the government and control of such corporations.'

"These fire companies are formed by consent of the Colonie Town
Board. The Town has control over the membership of the
companies, as well as many other aspects of their structure,
organization and operation (section 1402). The plaintiffs' contention
that their relationship with the Town of Colonie is solely contractual
is a mischaracterization. The municipality clearly has, by law,
control over these volunteer organizations which reprovide a public
function.

"It should be further noted that the Legislature, in enacting FOIL,
intended that it apply in the broadest possible terms. '...[I]t is
incumbent upon the state and its localities to extend public
accountability wherever and whenever feasible' (Public Officers Law,
section 84).

"This court recognizes the long, distinguished history of volunteer
fire companies in New York State, and the vital services they provide
to many municipalities. But not to be ignored is that their existence
is inextricably linked to, dependent on, and under the control of the
municipalities for which they provide an essential public service."

In consideration of the foregoing, it is clear that volunteer fire companies are subject to the
Freedom of Information Law.

In the only case of which I am aware on the subject, the Appellate Division, Second
Department, held that a volunteer ambulance corporation performing its duties for an ambulance
district is subject to the Freedom of Information Law. In so holding, the decision stated that:

"The Court of Appeals has rejected any distinction between a
volunteer organization on which a local government relies for the
performance of an essential public service and an organic arm of
government (see, Matter of Westchester Rockland Newspapers v.
Kimball, 50 N.Y.2d 575, 579, 430 N.Y.S.2d 574, 408 N.E.2d 904).

"The appellant performs a governmental function, and it performs
that function solely for the Mastic Ambulance District, a municipal
entity and a municipal subdivision of the Town of Brookhaven
(hereinafter the Town). The appellant submits a budget to and
receives all of its funding from the Town, and the allocation of its
funds is scrutinized by the Town. Thus, the appellant clearly falls
within the definition of an agency and is subject to the requirements
of FOIL" [Ryan v. Mastic Ambulance Company, 212 AD 2d 716,
622 NYS 2d 795, 796 (1995)].

It is emphasized that the decision cited above pertained to an ambulance company
performing its duties for an ambulance district, which is itself a public corporation. Although there
appears to be no ambulance district in this instance, critical in my view is that Slaterville
Ambulance, Inc. was formed by the volunteer fire company, which is clearly an agency, and that
the members of the two entities are the same. In consideration of those factors, I believe that the
entity in question would be found to constitute an "agency" or, in the alternative, that its records
would fall within the coverage of the Freedom of Information Law.

As you may be aware, that statute defines the term "record" expansively to mean:

"...any information kept, held, filed, produced, reproduced by, with
or for an agency or the state legislature, in any physical form
whatsoever including, but not limited to, reports, statements,
examinations, memoranda, opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings, maps, photos, letters,
microfilms, computer tapes or discs, rules, regulations or codes."

Since the fire company is the corporate parent of the ambulance corporation, and particularly if the
offices of the two corporations are in the same premises, their leadership and members are the same
or overlap, and their records are overseen, used and administered by the same persons, it would
appear that the records are kept by or for the fire company and, therefore, fall within the coverage
of the Freedom of Information Law. In short, the ambulance corporation does not appear to stand
alone, but rather is analogous to a subsidiary of the fire company.

Next, the Open Meetings Law pertains to meetings of public bodies, and §102(2) of that
statute defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct
public business and which consists of two or more members,
performing a governmental function for the state or for an agency or
department thereof, or for a public corporation as defined in section
sixty-six of the general construction law, or committee or
subcommittee or other similar body of such public body."

While there is no judicial decision of which I am aware dealing with the status of the governing
body of an ambulance corporation, the entity at issue appears to be subject to the Open Meetings
Law. If, like the fire company, the ambulance company performs its functions exclusively for a
municipality, I believe that it would be found that it conducts public business and performs a
governmental function for a municipality and that, therefore, the meetings of its governing body
would be subject to the Open Meetings Law.

Lastly, it has consistently been advised that portions of records identifiable to those in
receipt of emergency services provided by a fire or ambulance company may be withheld.

As a general matter, the Freedom of Information Law is based upon a presumption of access.
Stated differently, all records of an agency are available, except to the extent that records or portions
thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.
Further, the introductory language of §87(2) refers to the authority to withhold "records or portions
thereof" that fall within the scope of the grounds for denial that follow. The phrase quoted in the
preceding sentence indicates that a single record or report may contain both accessible and deniable
information. Moreover, that phrase in my opinion imposes an obligation upon agencies to review
requested records in their entirety to determine which portions, if any, may justifiably be withheld.

Relevant is §87(2)(b) of the Freedom of Information Law, which states that an agency may
withhold records or portions thereof that:

"if disclosed would constitute an unwarranted invasion of personal
privacy under the provision of subdivision two of section eighty-nine
of this article..."

In addition, §89(2)(b) lists a series of examples of unwarranted invasions of personal privacy, the
first two of which pertain to:

"i. disclosure of employment, medical or credit histories or personal
references or applicants for employment;

ii. disclosure of items involving the medical or personal records of
a client or patient in a medical facility..."

From my perspective, a record of a medical emergency call consists in part of what might be
characterized as a medical record or history relating to the person needing care or services [see
Hanig v. NYS Department of Motor Vehicles, 79 NY2d 106 (1992)].

In my opinion, portions of records identifying those to whom medical services were
rendered, their ages, and descriptions of their medical problems or conditions could be withheld on
the ground that disclosure would constitute an unwarranted invasion of personal privacy, for
disclosure of a name coupled with those details in my view represents a personal and somewhat
intimate aspect of the individual's life. However, I believe that other aspects of the records, such
as the locations of calls, should be disclosed. In my view, an emergency call, particularly when
sirens or flashing lights are used, is an event of a public nature. When a fire truck or ambulance
travels to its destination, that destination is or can be known to those in the vicinity of the event.
In essence, I believe that event is of a public nature and that disclosure of a location or a brief
description of an event would not likely constitute an unwarranted invasion of personal privacy.
Nevertheless, the personally identifiable details described earlier could in my view be withheld.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Bradley M. Pinsky