April 15, 1998
Mr. Raymond Shanley, Esq.
Utica Community Action, Inc.
253 Genesee Street
Utica, NY 13501
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, unless othewise indicated.
Dear Mr. Shanley:
I have received your letter of March 24 in which you raised a variety
of issues and questioned the accuracy of an opinion addressed to you on
March 19. In brief, although the status of community action agencies under
the Freedom of Information Law is unclear, it was advised that due to the
legislative history associated with those agencies, that statute should serve to
provide guidance concerning disclosure and accountability.
You have contended that "there is no question that Utica Community
Action, Inc. is not bound by the Freedom of Information Act...", because the
legislation that created community action agencies, the Economic Opportunity
Act of 1964, was repealed and supplanted with the Community Services
Block Grant Act part of (Public Law 97-35, the Omnibus Budget
Reconciliation Act of 1981). Although the Economic Opportunity Act of
1964 was repealed, a key element of the Act was essentially preserved, and
I believe that elements of the original intent of the Act must, therefore, also
be preserved. Specifically, §673 of the Community Services Block Grant Act
(42 USC 2790) states in subdivision (1) that:
"The term 'eligible entity' means any
organization which was officially designated as
a community action program under the
provisions of section 210 of the Economic
Opportunity Act of 1964 for fiscal year 1981,
unless such community action agency or a
community action program lost its designation
under section 210 of such Act as a result of a
failure to comply with the provisions of such
Based on the foregoing, unless their designation was revoked, the entities
subject to the 1964 Act are the same as those subject to the successor
legislation, and their functions continued without change. Moreover, the
relationships established under the original Act with units of state and local
government, and with the communities they serve, were extended.
To suggest, as you do, that a community action agency is analogous
to other private corporations in my view does not reflect either reality or the
terms of the law. The functions of those agencies as described in §675(c) are
historically governmental in nature. That statute specifies that one-third of the
members of their boards must be public officials, and another third must be
chosen "in accordance with democratic selection procedures..." From my
perspective, those characteristics distinguish community action agencies from
private corporations generally. In short, community action agencies would
not exist but for their relationships with entities of state and local government.
You appear to have expressed the view that the receipt of government
funds "might be construed" to mean that an entity in receipt of such funding,
"whether in the form of grants, contracts, or indirect assistance (e.g., tuition),"
might lead to a contention that all recipients are subject to the Freedom of
Information Law. That was not inferred in the letter addressed to you, and
the receipt of government funds is not a key ingredient in determining whether
the Freedom of Information Law is applicable. I do not believe that anyone
would contend, for example, that the private firm with which an agency has
a contract to supply goods or services, such as the firm that contracts with an
agency to supply computers or computer repair services, is subject to that
statute. Similarly, since you referred to religious organizations that receive
government money, it is my view that the receipt of government funds neither
changes the essential nature of the organization nor transforms it into a
governmental entity that would fall within the coverage of the Freedom of
Information Law. Community action agencies, unlike many other recipients
of governmental funding, maintain a statutory relationship with state and local
government and carry out functions in conjunction with government; they
would not exist absent that relationship.
Lastly, despite your opinion of the Utica Observer-Dispatch, I reiterate
the principle expressed in the response to you of March 19, that the status or
interest of an applicant for records that would otherwise be public should be
irrelevant. The content of records, coupled with the direction provided in the
grounds for denial appearing in the Freedom of Information Law, should serve
as the basis for determining the extent to which records should be disclosed,
not the identity or interest of the person seeking the records.
I hope that I have been of assistance.
Robert J. Freeman