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July 10, 2000

FOIL-AO-12195

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

I have received your letter in which you asked that this office " have SCOPED
declared subject to FOIA regulations." "SCOPED" is the Schuyler County Partnership for
Economic Development, and it consists of "private voting members", individual or business
members who pay at least a thousand dollars in annual dues; "non-voting members", persons
who have paid annual dues in the amount of at least a hundred but less than a thousand
dollars; and "public voting members" who are representatives of various entities of
government in Schuyler County. The Board of Directors consists of twelve, five of whom
are private voting members, five of whom are representatives of government agencies, and
two ex-officio members, one each from the Schuyler County Chamber of Commerce and
Cornell Cooperative Extension.

From my perspective, it is unclear whether SCOPED is subject to the Freedom of
Information Law. That statute applies to agencies, and §86(3) 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, an agency typically is an entity of state or local government; not-for-
profit and other corporate entities are generally not subject to the Freedom of Information
Law.

There are judicial decisions, however, that indicate that a not-for-profit entity may be
an agency, despite its corporate status, if there is substantial governmental control over its
operations. For instance, 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, notwithstanding 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,
§84).

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].

In the same decision, the Court noted that:

"...not only are the expanding boundaries of governmental
activity increasingly difficult to draw, but in perception, if not
in actuality, there is bound to be considerable crossover
between governmental and nongovernmental activities,
especially where both are carried on by the same person or
persons" (id., 581).

More recently, in Buffalo News v. Buffalo Enterprise Development Corporation [84
NY 2d 488 (1994)], the Court of Appeals found again that a not-for-profit corporation, based
on its relationship to an agency, was itself an agency subject to the Freedom of Information
Law. The decision indicates that:

"The BEDC principally pegs its argument for nondisclosure on
the feature that an entity qualifies as an 'agency' only if there is
substantial governmental control over its daily operations (see,
e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v
American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519
F2d 174). The Buffalo News counters by arguing that the City
of Buffalo is 'inextricably involved in the core planning and
execution of the agency's [BEDC] program'; thus, the BEDC is
a 'governmental entity' performing a governmental function for
the City of Buffalo, within the statutory definition.

"The BEDC's purpose is undeniably governmental. It was
created exclusively by and for the City of Buffalo...In sum, the
constricted construction urged by appellant BEDC would
contradict the expansive public policy dictates underpinning
FOIL. Thus, we reject appellant's arguments," (id., 492-493).

Your letter does not include detail concerning the creation of SCOPED, i.e., whether
it was created through the interest of the business community, or perhaps by government.
Further, the Board of Directors is evenly split between government representatives and
representatives of the private sector. Again, five are private voting members and five are
public voting members. Of the remaining two, the Chamber of Commerce is private, but the
Cooperative Extension is, according to §224(8)(b) of the County Law, "a subordinate
governmental agency."

If SCOPED is a creation of government, I believe that it would fall within the
coverage of the Freedom of Information Law. However, if there is no substantial control, the
conclusion may be different.

Lastly, even if SCOPED is not subject to the Freedom of Information Law, records
pertaining to it may nonetheless be available. That statute is applicable to agency records,
and §86(4) defines the term "record" expansively 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."

Due to the breadth of the definition, when records involving SCOPED come into the
possession of the public voting members or the members of the Board of Directors selected
by the public voting members, I believe that they would constitute agency records that fall
within the coverage of the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: SCOPED, Inc.