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  March 26, 2001

FOIL-AO-12603

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, unless otherwise indicated.

Dear

As you are aware, I have received your letter and the correspondence attached to it. Having
requested records from the New York State Technology Enterprise Corporation (NYSTEC) under
the Freedom of Information Law, you were informed that it is not subject to that statute. You have
sought my views on the matter.

In this regard, the Freedom of Information Law 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."

Based on the foregoing, the Freedom of Information Law generally applies to records of entities of
state and local government in New York.

Judicial decisions indicate that not-for-profit corporations may be subject to the Freedom of
Information Law if the government maintains substantial control over their operations [see e.g.,
Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 84 NY2d 488 (1994); Eisenberg v.
Goldstein, Supreme Court, Kings County, February 26, 1988]. I have obtained NYSTEC's
certificate of incorporation and related records and have spoken with several of its staff. Based on
a review of the materials and our conversations, it appears that NYSTEC is independent of
government. No government agency or official has any control over the Corporation or the authority
to designate any person to NYSTEC's Board of Directors. That being so, I do not believe that
NYSTEC is an "agency" or that it is required to comply with the Freedom of Information Law.

I hope that the foregoing serves to clarify your understanding of the matter and that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Kenneth K. Morse
Edward Schreiner