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June 17, 1998

 

Ms. Patty Villanova
14 West Avenue
Putnam Valley, NY 10579

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 Ms. Villanova:

I have received your letter of May 21 and the correspondence relating to it.

You indicated that you have been trying without success to obtain the financial records
of the Putnam Valley Volunteer Fire Department and the Volunteer Ambulance Corps
from the Town of Putnam Valley, and you added that you might "have no other option but
to sue the Town". The Town Clerk has informed you that the two entities whose records
are the subject of your request are "not for profit, private corporations, independent of the
Town of Putnam Valley" and that the Town does not have and never has had possession
of the records.

You have sought advice on the matter, and in this regard, I offer the following
comments.

First, since the Town does not maintain the records in which you are interested, I do
not believe that it has any obligation to acquire or disclose the records at issue to you. In
short, although the Town may have a relationship with the two entities, as the Town Clerk
suggested, those entities are separate from the Town, and the Town simply has no records
falling within the scope of your request to disclose.

Second, although the organizations that maintain the records of your interest were
created as not-for-profit corporations, one, the volunteer fire company, is, based upon
judicial decisions, clearly required to comply with the Freedom of Information Law; the
other, the volunteer ambulance company, may or may not be the subject to that statute
depending upon its nature.

The Freedom of Information Law is applicable to agency records, and º86(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."

As such, the Freedom of Information Law generally pertains to records maintained by
entities of state and local governments.

However, in Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)],
a case involving access to records relating to a lottery conducted by a volunteer fire
company, the Court of Appeals, found that volunteer fire companies, despite their status
as not-for-profit corporations, are "agencies" subject to the Freedom of Information Law.
In so holding, the Court stated that:

"We begin by rejecting respondent's contention that, in applying the
Freedom of Information Law, a distinction is to be made between a
volunteer organization on which a local government relies for
performance of an essential public service, as is true of the fire
department here, and on the other hand, an organic arm of
government, when that is the channel through which such services are
delivered. Key is the Legislature's own unmistakably broad
declaration that, '[a]s state and local government services increase and
public problems become more sophisticated and complex and
therefore harder to solve, and with the resultant increase in revenues
and expenditures, it is incumbent upon the state and its localities to
extend public accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, º84).

"True, the Legislature, in separately delineating the powers and duties
of volunteer fire departments, for example, has nowhere included an
obligation comparable to that spelled out in the Freedom of
Information statute (see Village Law, art 10; see, also, 39 NY Jur,
Municipal Corporations, ºº560-588). But, absent a provision
exempting volunteer fire departments from the reach of article 6-and
there is none-we attach no significance to the fact that these or other
particular agencies, regular or volunteer, are not expressly included.
For the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objections cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit" (id. at 579].

Moreover, although it was contended that documents concerning the lottery were not
subject to the Freedom of Information Law because they did not pertain to the
performance of the company's fire fighting duties, the Court held that the documents
constituted "records" subject to the Freedom of Information Law [see º86(4)].

More recently, another decision confirmed in an expansive manner that volunteer fire
companies are required to comply with the Freedom of Information Law. That decision,
S.W. Pitts Hose Company et al. v. Capital Newspapers (Supreme Court, Albany County,
January 25, 1988), dealt with the issue in terms of government control over volunteer fire
companies. In its analysis, the Court states that:

"Section 1402 of the Not-for-Profit Corporation Law is directly
applicable to the plaintiffs and pertains to how volunteer fire
companies are organized. Section 1402(e) provides:

'...a fire corporation, hereafter incorporated under this
section shall be under the control of the city, village,
fire district or town authorities having by law, control
over the prevention or extinguishment of fires therein.
Such authorities may adopt rules and regulations for
the government and control of such corporations.'

"These fire companies are formed by consent of the Colonie Town
Board. The Town has control over the membership of the companies,
as well as many other aspects of their structure, organization and
operation (section 1402). The plaintiffs' contention that their
relationship with the Town of Colonie is solely contractual is a
mischaracterization. The municipality clearly has, by law, control over
these volunteer organizations which reprovide a public function.

"It should be further noted that the Legislature, in enacting FOIL,
intended that it apply in the broadest possible terms. '...[I]t is
incumbent upon the state and its localities to extend public
accountability wherever and whenever feasible' (Public Officers Law,
section 84).

"This court recognizes the long, distinguished history of volunteer fire
companies in New York State, and the vital services they provide to
many municipalities. But not to be ignored is that their existence is
inextricably linked to, dependent on, and under the control of the
municipalities for which they provide an essential public service."

Based upon the foregoing, it is clear that volunteer fire companies are subject to the
Freedom of Information Law.

In the only case of which I am aware on the subject, the Appellate Division, Second
Department, held that a volunteer ambulance corporation performing its duties for an
ambulance district is subject to the Freedom of Information Law. In so holding, the
decision stated that:

"The Court of Appeals has rejected any distinction between a
volunteer organization on which a local government relies for the
performance of an essential public service and an organic arm of
government (see, Matter of Westchester Rockland Newspapers v.
Kimball, 50 N.Y.2d 575, 579, 430 N.Y.S.2d 574, 408 N.E.2d 904).

"The appellant performs a governmental function, and it performs that
function solely for the Mastic Ambulance District, a municipal entity
and a municipal subdivision of the Town of Brookhaven (hereinafter
the Town). The appellant submits a budget to and receives all of its
funding from the Town, and the allocation of its funds is scrutinized
by the Town. Thus, the appellant clearly falls within the definition of
an agency and is subject to the requirements of FOIL" [Ryan v. Mastic
Ambulance Company, 212 AD 2d 716, 622 NYS 2d 795, 796
(1995)].

It is emphasized that the decision cited above pertained to an ambulance company
performing its duties for an ambulance district, which is itself a public corporation. I am
unaware of the specific nature of the ambulance company whose records you are
requesting. If it is analogous to the entity that was the subject of the Ryan decision, I
believe that it would be subject to the Freedom of Information Law. However, if it is
different, the Freedom of Information Law might not apply. If additional information can
be provided concerning the volunteer ambulance company, perhaps I could offer a more
precise response.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Carole P. Hughes, Town Clerk
Putnam Valley Ambulance Corp.
Putnam Valley Volunteer Fire Department