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FOIL-AO-14021

May 1, 2003 E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letters of April 9 and 13 concerning the status of "district management associations" under the Freedom of Information Law. Although you serve a s a member of the board of directors of a district management association in Queens, you indicated that you have had difficulty gaining access to a variety of information, including "the District Plan, Membership in the District, and other Board records such as its policies."

While I do not believe that a district management association is subject to the Freedom of Information Law, that statute can be used to obtain much of the information of your interest from governmental sources. In this regard, I offer the following comments. First, the Freedom of Information Law is applicable to agency records, 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 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."

In short, the Freedom of Information Law generally applies to entities of state and local government in New York.

As you are likely aware, a district management association is created for each business improvement district established pursuant to Article 19-A of the General Municipal Law, §§980 to 980-q. Section 980-m deals directly with district management associations and specifies in subdivision (a) that they are not-for-profit corporations, and subdivision (b) indicates that the board of directors "shall be composed of representatives of owners and tenants within the district, provided, however, that not less than a majority of its members shall represent owners..." That provision also states that:

"The board shall include, in addition, three members, one member appointed by each of the following: the chief executive officer of the municipality, the chief financial officer of the municipality and the legislative body. Provided, that in a city having a population of one million or more, the third additional member shall be appointed by the borough president of the borough in which the district is located and a fourth additional member shall be appointed by the council member representing the council district in which the proposed district is located, or if the proposed district is located in more than one council district, the fourth additional member will be appointed by the speaker of the city council after consultation with the council members representing the council districts in which the proposed district is located. The additional three members (four in a city of one million or more) shall serve as the incorporators of the association pursuant to the not-for-profit corporation law."

Based on the foregoing, although some members of the board of directors of a district management association are designated by government, a majority represents the private sector, and again, the entity is a not-for-profit corporation. That being so, I do not believe that a district management association constitutes an "agency" subject to the Freedom of Information Law.

Second, by means of other provisions of the General Municipal Law and the functions of government officials or persons designated by government officials, much of the documentation of your interest must be disclosed by agencies required to comply with the Freedom of Information Law. That law pertains to all records of an agency, and §86(4) defines the term "record" 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 language quoted above, when records pertaining to the district management association come into the possession of a government office or official, they are subject to rights conferred by the Freedom of Information Law. I note that §980-d(c) specifies that a draft district plan must be submitted to the City Planning Commission, which in turn must forward copies to the City Council, the Council member representing a proposed district, the appropriate community board and the borough president. Further, §980-e states that, a public hearing must be held prior to the adoption of a district plan and that copies of the proposed plan must be made available at the office of the City Clerk and "any additional place" if "necessary or desirable." Amendments to a district plan also require a public hearing prior to adoption pursuant to §980-i. In short, the district plan must be maintained by one or more City agencies, and each would be required to disclose it in response to a request made under the Freedom of Information Law.

Similarly, when the other kinds of records to which you referred, such as policies, by-laws and the like, come into the possession of a City official due to his or her participation on the association's board of directors, they, too, fall within the coverage of the Freedom of Information Law and can be obtained by seeking them from the agencies that employ or are headed by those officials.

I hope that I have been of assistance.

RJF:tt