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July 11, 1997

 

 

 

Mr. Richard L. Nash
4 John Smith Avenue
Auburn, NY 13021

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 Mr. Nash:

As you are aware, I have received your letter of June 15
concerning certain practices of the Auburn Industrial Development
Agency (the "IDA") and the Auburn Local Development Corporation
(the "LDC").

Your first area of inquiry pertains to the IDA, and you have
questioned the propriety of an executive session held "to discuss
a pilot for a local shop."

While the nature of that discussion is not entirely clear, I
note that the Open Meetings Law is based on a presumption of
openness. Stated differently, all meetings of public bodies, such
as the IDA, must be conducted in public, unless there is a basis
for entry into executive session. Paragraphs (a) through (h) of
§105(1) of the Open Meetings Law specify and limit the topics that
may appropriately be considered in an executive session.

One of the grounds for entry into executive session that is
frequently pertinent to the work of an industrial development
agency is §105(1)(f). That provision permits a public body to
conduct an executive session to discuss:

"the medical, financial, credit or employment
history of a particular person or corporation,
or matters leading to the appointment,
employment, promotion, demotion, discipline,
suspension, dismissal or removal of a
particular person or corporation..."

Based on the foregoing, to the extent that the discussion involved
the financial or credit history of a particular person or
corporation, for example, I believe that §105(1)(f) would have
justified the holding of an executive session.

Secondly, you wrote that when you attend a meeting of the IDA,
you "receive no material and the discussion is largely about facts
on a certain page that are not yet available to any one but
members." You wrote that you have requested the records during
meetings, but that they have been available only after the
meetings.

Here I direct your attention to the Freedom of Information
Law. Although an agency may respond to an oral request made under
the Freedom of Information Law, §89(3) of that statute authorizes
an agency to require that a request be made in writing. Further,
while a public body may choose to furnish information or records
during a meeting, it may require that a request be made in
accordance with its rules and regulations adopted under the Freedom
of Information Law.

By way of background, §89(1)(b)(iii) of the Freedom of
Information Law requires the Committee on Open Government to
promulgate regulations concerning the procedural implementation of
the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires the
governing body of a public corporation, i.e., a board of trustees,
to adopt rules and regulations consistent with the Law and the
Committee's regulations.

Section 1401.2 of the regulations, provides in relevant part
that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so.

(b) The records access officer is responsible
for assuring that agency personnel...

(3) Upon locating the records, take one of
the following actions:

(i) make records promptly available for
inspection; or
(ii) deny access to the records in whole or in
part and explain in writing the reasons
therefor..."

In view of the foregoing, the records access officer has the "duty
of coordinating agency response" to requests and assuring that
agency personnel act appropriately in response to requests.

Section 1401.4 of the regulations entitled "Hours for public
inspection" states that:

"(a) Each agency shall accept requests for
public access to records and produce records
during all hours they are regularly open for
business.

(b) In agencies which do not have daily
regular business hours, a written procedure
shall be established by which a person may
arrange an appointment to inspect and copy
records. Such procedure shall include the
name, position, address and phone number of
the party to be contacted for the purpose of
making an appointment."

In sum, although the IDA could disclose records during a
meeting, I do not believe that it would be obliged to do so.
Rather, the IDA could, in my opinion, require that an applicant
request the records in writing during the time set forth in its
rules and regulations. Alternatively, you could request records
under the Freedom of Information Law prior to a meeting.

I note that the Committee on Open Government has recognized
that members of the public have at times been frustrated at
meetings due to their inability to gain access to records discussed
at meetings. Consequently, for several years the Committee has
recommended legislation on the subject. If enacted, the
legislation would amend §103 of the Open Meetings Law as follows:

"A record which is available pursuant to
article six of this chapter, including any
proposed resolution, law, rule, regulation,
policy or any amendment thereto, that is
scheduled to be presented and discussed by a
public body at an open meeting shall be made
available for review to the public upon
request at lease seventy-two hours prior to
such meeting, or as soon as practicable.
Copies of such record shall be made available
for a reasonable fee as determined in the same
manner as provided in article six of this
chapter."

Lastly, you asked whether meetings of the LDC must be
conducted in public. You indicated that the LDC is a not-for-profit corporation consisting of nine members, and that among the
nine, five permanent members are the Mayor, the City Manager, the
Corporation Counsel, the Comptroller, and the Chairman of the IDA.
In my opinion, in view of the membership of the LDC's governing
body, it is likely subject to both the Open Meetings Law and the
Freedom of Information Law.

While I know of no judicial decision concerning the status of
a local development corporation under the Open Meetings Law, the
State's highest court has considered the matter under the Freedom
of Information Law.

The Freedom of Information Law pertains to agencies, 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" [§86(3)].

Specific reference is found in §1411 of the Not-for-Profit
Corporation Law to local development corporations. The cited
provision describes the purpose of those corporations and states in
part that:

"it is hereby found, determined and declared
that in carrying out said purposes and in
exercising the powers conferred by paragraph
(b) such corporations will be performing an
essential governmental function."

Therefore, due to its status as a not-for-profit corporation, it is
not clear in every instance that a local development corporation is
a governmental entity; however, it is clear that such a corporation
performs a governmental function.

Relevant to your inquiry is a decision rendered by the Court
of Appeals in which it was held that a particular not-for-profit
local development corporation is an "agency" required to comply
with the Freedom of Information Law [Buffalo News v. Buffalo
Enterprise Development Corporation, 84 NY 2d 488 (1994)]. In so
holding, the Court found that:

"The BEDC seeks to squeeze itself out of that
broad multipurposed definition by relying
principally on Federal precedents interpreting
FOIL's counterpart, the Freedom of Information
Act (5 U.S.C. §552). The BEDC principally
pegs its argument for nondisclosure on the
feature that an entity qualifies as an
'agency' only if there is substantial
governmental control over its daily
operations...The Buffalo News counters by
arguing that the City of Buffalo is
'inextricably involved in the core planning
and execution of the agency's [BEDC] program';
thus the BEDC is a 'governmental entity'
performing a governmental function of the City
of Buffalo, within the statutory definition.

"The BEDC's purpose is undeniably
governmental. It was created exclusively by
and for the City of Buffalo to attract
investment and stimulate growth in Buffalo's
downtown and neighborhoods. As a city
development agency, it is required to publicly
disclose its annual budget. The budget is
subject to a public hearing and is submitted
with its annual audited financial statements
to the City of Buffalo for review. Moreover,
the BEDC describes itself in its financial
reports and public brochure as an 'agent' of
the City of Buffalo. In sum, the constricted
construction urged by appellant BEDC would
contradict the expansive public policy
dictates underpinning FOIL. Thus, we reject
appellant's arguments" (id., 492-493).

Based on the foregoing, if the relationship between the LDC
and the City of Auburn is similar to that of the BEDC and the City
of Buffalo, the LDC would constitute an "agency" required to comply
with the Freedom of Information Law.

Because the five City officials serve as permanent members of
the LDC, it is clear that the City of Auburn exercises substantial
control over the LDC. If that is so, I believe that the LDC would
constitute an "agency" required to comply with the Freedom of
Information Law.

If the LDC is an agency that falls within the scope of the
Freedom of Information Law, I believe that its board would also
constitute a "public body" for purposes of the Open Meetings Law.
Section 102(2) defines that phrase 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."

By breaking the definition into its components, I believe that each
condition necessary to a finding that the board of the LDC is a
"public body" may be met. It is an entity for which a quorum is
required pursuant to the provisions of the Not-for-Profit
Corporation Law. It consists of more than two members. Further,
based upon the language of §1411(a) of the Not-for-Profit
Corporation Law, which was quoted in part earlier, and the degree
of governmental control exercised by the City of Auburn, I believe
that it conducts public business and performs a governmental
function for a public corporation, in this instance, the City of
Auburn.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: City of Auburn Industrial Development Agency
Auburn Local Development Agency