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December 7, 2000

FOIL-AO-12401

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 of October 26, as well as a variety of materials relating to it. In
brief, having requested records from the Cicero Local Development Corporation ("CLDC") under
the Freedom of Information Law, you were informed that it is not subject to that statute because it
was formed as a not-for-profit corporation.

From my perspective, although the Freedom of Information Law generally applies to
governmental entities, judicial decisions indicate that a not-for-profit corporation may be subject to
the Freedom of Information Law if the corporation is under substantial government control.

In this regard, the Freedom of Information Law pertains to agencies, 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" [§86(3)].

Specific reference is found in §1411 of the Not-for-Profit Corporation Law to local
development corporations. The cited provision describes the purpose of those corporations and
states in part that:

"it is hereby found, determined and declared that in carrying out said
purposes and in exercising the powers conferred by paragraph (b)
such corporations will be performing an essential governmental
function."
Therefore, due to its status as a not-for-profit corporation, it is not clear in every instance that a local
development corporation is a governmental entity; however, it is clear that such a corporation
performs a governmental function.

Relevant to your inquiry is a decision rendered by the Court of Appeals, the state's highest
court, in which it was held that a particular not-for-profit corporation, or also a local development
corporation, is an "agency" required to comply with the Freedom of Information Law [Buffalo News
v. Buffalo Enterprise Development Corporation, 84 NY 2d 488 (1994)]. In so holding, the Court
found that:

"The BEDC seeks to squeeze itself out of that broad multipurposed
definition by relying principally on Federal precedents interpreting
FOIL's counterpart, the Freedom of Information Act (5 U.S.C. §552).
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...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 of 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 to attract investment and
stimulate growth in Buffalo's downtown and neighborhoods. As a
city development agency, it is required to publicly disclose its annual
budget. The budget is subject to a public hearing and is submitted
with its annual audited financial statements to the City of Buffalo for
review. Moreover, the BEDC describes itself in its financial reports
and public brochure as an 'agent' of 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).

Based on the foregoing, if the relationship between the CLDC and the Town of Cicero is
analogous to that of the BEDC and the City of Buffalo, the LDC would constitute an "agency"
required to comply with the Freedom of Information Law. Stated differently, if there is significant
government control, i.e., if a majority of the CLDC's board of directors consists of or is designated
by government, the CLDC, based on a decision by the state's highest court, would be required to
comply with the Freedom of Information Law, notwithstanding its status as a not-for-profit
corporation.

Even if the CLDC is not subject to the Freedom of Information Law, the membership on the
board of directors of a municipal official in his or her capacity as a municipal official would bring
records within the coverage of the Freedom of Information Law. That statute pertains 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."

In view of the foregoing, if a Town of Cicero official acting in his or her capacity as a Town official
serves on the CLDC Board, records that he or she produces or receives in that capacity would be
Town records subject to rights conferred by the Freedom of Information Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Peter Kip, Jr.
Town Board