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March 19, 1998

Mr. Ray Shanley
Executive Director
Utica Community Action, Inc.
253 Genesee Street
Utica, NY 13501

Dear Mr. Shanley:

I have received a letter dated March 4 from Matt Leingang of the Utica
Observer-Dispatch in which he asked that I write to you for the purpose of
"explaining directly to the anti-poverty agency why it should follow the spirit
of the Freedom of Information Law." He indicated that Utica Community
Action, Inc. has repeatedly denied requests to review financial information,
particularly records reflective of travel expenses incurred by yourself and other
employees. Mr. Leingang included materials that you prepared indicating that
your agency "will not permit the Observer-Dispatch access to its records..."

Mr. Leingang indicated that he shared a copy of an advisory opinion
prepared in 1996 concerning the status of a different community action agency
under the Freedom of Information Law. Although you may be familiar with
that opinion, I will reiterate several of the points offered therein.

From my perspective, it is not entirely clear that a community action
agency is subject to the requirements of the Freedom of Information Law.
Nevertheless, it is clear in my view that a community action agency has an
obligation to provide information to the public.

By way of background, the New York Freedom of Information Law
pertains 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."

As such, the Freedom of Information Law generally applies to records
maintained by entities of state and local government. It is my understanding
that community action agencies are not-for-profit corporations. Although it
appears that they perform a governmental function, it is questionable whether
they constitute "governmental entities" or, therefore, are agencies subject to
the Freedom of Information Law.

It is my understanding, however, that community action agencies have
been created by means of the authority conferred by the Economic Opportunity
Act of 1964. According to §201 of the Act, the general purposes of a
community action agency are:

"to stimulate a better focusing of all available
local, State, private and Federal resources upon
the goal of enabling low-income families, and
low-income individuals of all ages, in rural and
urban areas to attain the skills, knowledge, and
motivations and secure the opportunities
needed for them to become fully self-sufficient..." [§201(a)]

"to provide for basic education, health care,
vocational training, and employment
opportunities in rural America to enable the
poor living in rural areas to remain in such
areas and become self-sufficient therein..."

When community action agencies are designated, §211 indicates that
they perform a governmental function for the state or for one or more public
corporations. It is noted that a public corporation includes a county, city,
town, village, or school district, for example. As such, by means of the
designation as community action agencies, those agencies apparently perform
their duties for the state or at least one public corporation.

Perhaps most importantly, §213 of the enabling legislation expresses
an intent to enhance public participation as well as disclosure of information
regarding the functions and duties of community action agencies. Specifically,
subdivision (a) of §213 states in relevant part that:

"[E]ach community action agency shall
establish or adopt rules to carry out this
section, which shall include rules to assure full
staff accountability in matters governed by law,
regulations, or agency policy. Each
community action agency shall also provide for
reasonable public access to information,
including but not limited to public hearings at
the request of appropriate community groups
and reasonable public access to books and
records of the agency or other agencies
engaged in program activities or operations
involving the use of authority or funds for
which it is responsible..."

Again, while it is unclear that the Freedom of Information Law applies
to records maintained by a community action agency, I believe that the federal
legislation quoted above expresses an intent to ensure accountability to the
public by providing "reasonable public access to books and records of the

Whether the Freedom of Information Law applies or otherwise, I
believe that it offers guidance concerning the disclosure.

That statute, in brief, 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 section 87(2)(a) through (i) of the Law. It is noted that 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 in my opinion indicates
that a single record might be accessible or deniable in whole or in part.

Insofar as records of a community agency agency include the names,
addresses or other identifying details pertaining to those receiving assistance
based on an income eligibility requirement, I believe that those items may be
withheld or deleted, as the case may be (see e.g., Tri-State Publishing Co. v.
City of Port Jervis, Community Development Agency, Supreme Court, Orange
County, March 4, 1992). Those kinds of details pertaining to participants in
your programs would if disclosed constitute "an unwarranted invasion of
personal privacy" [see Freedom of Information Law, §87(2)(b)].

On the other hand, the provision of federal law cited earlier specifically
refers to "books" of an agency, and I believe that the reference to "books" is
intended to mean books of accounts and similar records that detail the manner
in which a community action agency expends money. If money is spent in the
performance of one's duties, that kind of information in my opinion would
unquestionably be public. Disclosure of that information would enhance the
accountability of an agency to the public and serve as a means of meeting the
goals of the legislation cited earlier.

Lastly, the materials sent by Mr. Leingang suggest that you have
chosen to disclose to some but not to others. In this regard, as a general
principle, the Freedom of Information Law does not distinguish among
applicants for records. Stated differently, when records are accessible, they
must be made equally available to any person, notwithstanding one's status or
interest [see M. Farbman & Sons v. NYC Health and Hosps. Corp., 62 NY 2d
75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378
NYS 2d 165 (1976)].

In sum, based on the direction provided in federal law governing the
activities of community action agencies, I believe that the Utica Community
Action, Inc. is obliged to disclose in a manner that guarantees accountability
to the public.

If you would like to discuss the matter or if I can be of assistance,
please feel free to contact me.


Robert J. Freeman
Executive Director


cc: Matt Leingang