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January 19, 2001

FOIL-AO-12463

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 December 20 and the correspondence attached to it. You have
sought assistance in relation to your unanswered request for records of the Brentwood Legion
Ambulance Service ("the Service") relating to accidents and vehicle maintenance.

From my perspective, the key issue is whether the Service is subject to the Freedom of
Information Law. That statute is applicable to agency records, and §86(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, §84).

"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, §§560-588). 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 §86(4)].

Based upon the foregoing, it is clear that volunteer fire companies are subject to the Freedom
of Information Law, despite their status as private, not-for-profit corporations.

With specific respect to your situation, the Appellate Division, Second Department, which
includes Suffolk County within its jurisdiction, has held that a volunteer ambulance corporation is
subject to the Freedom of Information Law. In so holding, the decision states 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)].

I am unaware of the specific nature of the Service. 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. If, however, it is significantly different and does not maintain a similar relationship with one
or more municipal entities, that statute might not apply.

Assuming that the Service falls within the coverage of the Freedom of Information Law, I
point out that that statute 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 §87(2)(a) through (i) of the Law. In my view, the kinds of records
that you requested would be available, for none of the grounds for denial would be applicable.

Lastly, the Freedom of Information Law provides direction concerning the time and manner
in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within
five business days, or if an agency delays responding for an unreasonable time after it acknowledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part
that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing body,
who shall within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the reasons for
further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate a
challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Brentwood Legion Ambulance Service