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March 4, 1998




Mr. Robert J. Coan
1430 Balltown Road
Schenectady, NY 12309

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. Coan:

I have received your letter of February 5 in which you sought an advisory
opinion concerning the application of the Freedom of Information Law.

The correspondence attached to your letter indicates that you requested
various records from the Schenectady Permanent Firefighters Association (the
Association) relating to its "receipt of tax dollars paid to [that] group by the NYS
Insurance Department" pursuant to §9104 of the Insurance Law. Counsel to the
Association has contended that the Association "is not an agency within the
meaning of §86 of the Public Officers Law and accordingly does not honor FOIL
requests." You asserted, however, that "[a]s a recipient of public funds and as the
designated fire protection association for the City of Schenectady,
the...Association...is an entity that performs a governmental and proprietary
function for the City of Schenectady" and therefore is subject to the Freedom of
Information Law. You added that "tax dollars [are] paid to [the Association]...in
lieu of payments to the Treasurer of the Schenectady Fire Department pursuant
to Sections 9104 and 9105 of the NYS Insurance Law" and that, absent
disclosure, there may be no means of ascertaining "the legality of the
expenditures" by the Association.

From my perspective, it is unlikely that the Association constitutes an
"agency" required to comply with the Freedom of Information Law. However, as
designated agent for the City of Schenectady, I believe that the records sought fall
within the scope of that statute. In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency records, and
§86(3) of the Law 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, in general, an "agency" is a governmental entity
performing a governmental or proprietary function. As I understand the nature of
the Association, it is not a governmental entity and could not be characterized as
an "agency" subject to the requirements of the Freedom of Information Law.

Second, if my understanding of the provisions of the Insurance Law is
accurate, the Association has been designated by the City of Schenectady to
perform certain duties on its behalf. Pursuant to §9104(a), except in New York
City and Buffalo, fire insurers are required to pay a certain amount derived from
moneys received from their insureds within each city, village, fire or similar
district to the treasurer or other fiscal officer of or to authorities with jurisdiction
and control over such entity, or "to such other person or entity as shall be
designated in any special law to receive the premium tax..." As I comprehend the
correspondence, the Association has been designated by the City of Schenectady
to receive the tax. If that is so, I believe that the records maintained by the
Association as agent for the City fall within the scope of the Freedom of
Information Law.

Most pertinent under the circumstances in my view is §86(4) of the
Freedom of Information Law, which defines the term "record" broadly to include:

"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."

Based upon the language quoted above, documents need not be in the physical
possession of an agency, such as the City of Schenectady, to constitute agency
records; insofar as they are produced, kept or filed for an agency, they fall within
the coverage of the Freedom of Information Law, and the courts have so held.

For instance, it was found that records maintained by an attorney retained
by an industrial development agency were subject to the Freedom of Information
Law, even though that agency did not possess the records and the attorney fees
were paid by applicants that appeared before the agency. The Court determined
that the fees were generated in his capacity as counsel to the agency, that the
agency was his client, that "he comes under the authority of the Industrial
Development Agency" and that, therefore, records of payment in his possession
were subject to rights of access conferred by the Freedom of Information Law
(see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County,
May 13, 1993).

Perhaps most importantly, in a decision rendered by the Court of Appeals,
it was found that materials received by a corporation providing services for a
branch of the State University that were kept on behalf of the University
constituted "records" falling with the coverage of the Freedom of Information
Law. I point out that the Court rejected "SUNY's contention that disclosure turns
on whether the requested information is in the physical possession of the agency",
for such a view "ignores the plain language of the FOIL definition of 'records' as
information kept or held 'by, with or for an agency'" (see Encore College
Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New
York at Farmingdale, 87 NY 2d 410. 417 (1995).

Based on the language of the Freedom of Information Law and its judicial
interpretation, the records in question are apparently maintained by the
Association for the City of Schenectady; they are "kept, held, filed [and]
produced... for" the City. If that is so, despite their location and the fact that they
may be in the physical custody of the Association, I believe that they are City
records, and that the City of Schenectady has the responsibility of dealing with the
request.

Because the Association, in my opinion, is not an agency, it would not be
required to respond, absent direction to do so from the City, to your request.
Because they are City records, it is suggested that you resubmit your request to
the City's records access officer, who I believe is the City Clerk. Pursuant to the
regulations promulgated by the Committee on Open Government, an agency's
records access officer has the duty of coordinating the agency's response to
requests for records (see 21 NYCRR Part 1401). As such, the records access
officer should either obtain the records sought in order to determine the extent to
which they should be disclosed, or direct the Association to disclose the records
to the extent required by the Freedom of Information Law.

Lastly, with respect to rights of access, 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.

In my view, records indicating amounts received via payments would
clearly be accessible, for none of the grounds for denial would apply. Similarly,
records identifying recipients of payments would be accessible. I note, however,
that additional details that might pertain to the medical condition of recipients or
other intimate personal information could in my opinion be withheld or deleted
from records on the ground that disclosure of those items would constitute "an
unwarranted invasion of personal privacy" [see §87(2)(b)].

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:jm

cc: Edward Varno
Dale F. Jeffers
Michael Brockbank