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May 20, 1998

 

Mr. Arthur M. Hirsch
61 South Grand Street
Westbury, NY 11590

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. Hirsch:

I have received your letter of May 1, as well as the correspondence attached to it.

You wrote that you are "a vested member of the Transport Workers-Suburban Bus
Authority (Long Island Bus) Employees' Pension Trust" ("the Trust") and that you and
other members of the Trust "are or were employed by the Metropolitan Suburban Bus
Authority, which is part of the Metropolitan Transit Authority", and that you "are
considered æPublic Employees'." One of the attachments to your letter, a memorandum
of March 16 addressed to retired members of the Trust, appears to confirm your
contention, for it was stated that "because the MSBA was a division of the State of New
York...pensions paid by the State to its former employees were totally State tax exempt."

Notwithstanding the foregoing, you have been informed by the manager of the Trust
that you cannot attend meetings of the its Board of Trustees and that the "TWU MSBA
Employees Pension Trust is not subject to Freedom of Information statutes." You have
sought assistance in gaining access to records of the Trust and to meetings of its Board of
Trustees.

From my perspective, if indeed all members of the Trust are present or former public
employees, and if the only employers of those persons have been governmental entities, I
believe that the Trust would be required to give effect to the Freedom of Information Law
and that meetings of its Board of Trustees would fall within the coverage of the Open
Meetings Law.

In this regard, the Freedom of Information Law pertains to agency records, and º86(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 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."

A public authority is a public corporation. Therefore, any public authority in New York
State is an "agency", a governmental entity, that is subject to the Freedom of Information
Law.

In my opinion, if the Trust would not exist but for its relationship with a public
authority, and it if carries out its duties solely for or on behalf of present or former public
employees, it, too, would constitute an "agency" required to comply with the Freedom of
Information Law. I note that similar entities, such as the New York State Retirement
System, the New York State Teachers' Retirement System and various New York City
public employee trusts are subject to and have complied with the Freedom of Information
Law since the enactment of that statute.

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
º87(2)(a) through (i) of the Law. I point out that salary information regarding agency
employees is clearly accessible, for º87(3)(b) of the Freedom of Information Law requires
that each agency maintain and make available a record "setting forth the name, public
office address, title and salary of every officer or employee of the agency."

If the preceding assumptions and conclusions are accurate, the Board of Trustees of
the Trust would be subject to the Open Meetings Law. That statute is applicable to public
bodies, and º102(2) defines the phrase "public body" to include:

"...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."

Again, assuming that the Trust carries out its duties solely for or on behalf of public
employees, I believe that its Board of Trustees constitutes an entity that conducts public
business and performs a governmental function for a public corporation, i.e., a public
authority. If that is so, it is a public body that falls within the coverage of the Open
Meetings Law.

Like the Freedom of Information Law, the Open Meetings Law is based on a
presumption of openness. Meetings of public bodies must be conducted open to the
public, except to the extent that an executive session may be conducted in accordance
with º105(1) of the Open Meetings Law.

Enclosed for your review are copies of both the Freedom of Information Law and the
Open Meetings Law, and an explanatory brochure that deals with those statutes.

In an effort to enhance compliance with and understanding of the issue, copies of the
same materials and this response will be forwarded to the manager of the Trust.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

Encs.

cc: Joan Engert, Manager