May 27, 2003
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.
As you are aware, I have received your letter and the materials relating to it. You have sought my views concerning the accountability of the Niagara Falls Bridge Commission ("the Commission") and the status of that entity under statutes pertaining to public access to government records.
By way of background, the Commission was created by means of the approval of a Joint Resolution of Congress in 1938 and in Section 1 was conferred with the authority to " purchase, maintain, and operate all or any existing bridges across the Niagara River, subject to the conditions and limitations contained in this joint resolution and subject to the approval of the proper authorities in the Dominion of Canada." Section 4 states in part that the bridge constructed under the authority of the Joint Resolution "shall be deemed an instrumentality for international commerce authorized by the Government of the United States." Section 7 indicates that the Commission consists of eight members, four appointed by the Governor of New York, and four by "the proper authorities of the Dominion of Canada or of the Province of Ontario."
Although consent was given to the Commission by the proper Canadian authorities to carry out its duties and engage in projects, it does not appear to be an instrumentality of any Canadian government, and no legislation or action analogous to the Joint Resolution of Congress has ever been taken by a Canadian government. That being so, while the national government of Canada and the provincial government of Ontario participate in the operation of international bridges and appoint four members to the Commission, the Commission does not appear to be a Canadian governmental entity.
With respect to the disclosure of government records, the federal Freedom of Information Act (5 USC §552) pertains to records of federal agencies; the New York Freedom of Information Law (Public Officers Law, Article 6, §§84-90) pertains to records of entities of state and local government in New York. The latter 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 my understanding that the Commission was jointly operated by New York and Ontario, it was advised approximately two years ago that it is not an "agency" required to comply with the New York Freedom of Information Law. In short, New York cannot impose its laws beyond its borders, and reference was made to a decision involving a bi-state agency, Metro-ILA Pension Fund v. Waterfront Commission of New York Harbor (Supreme Court, New York County, NYLJ, December 16, 1986), in which it was held that "[a]n interstate agency is created by interstate compact, and New York may not impose its preferences with respect to freedom of information on the other party to the compact." Therefore, it was held that "the Waterfront Commission is not an 'agency' subject to New York's Freedom of Information Law." Based on my reliance on incomplete or inaccurate information, it was suggested that the Commission and its records fall beyond the coverage of the state's Freedom of Information Law.
It is now my understanding, however, that no unit of government in Canada exercises control, other than through the designation of four members of the Commission. Further, and more importantly, I was unaware when the opinion was prepared that the Joint Resolution was amended via the enactment of the H.R. 2950, the "Intermodal Surface Transportation Efficiency Act of 1991." Section 1070 of that enactment contains modifications to the Commission's charter, including paragraph (c) of subdivision (2) of that provision, which states that:
"The Commission shall be deemed for purposes of all Federal law to be a public agency or public authority of the State of New York, notwithstanding any other provision of Law." If indeed the Commission can be characterized as a public authority of the State of New York, since the definition of "agency" cited above makes specific reference to public authorities, the Commission would constitute an agency required to give effect to the New York Freedom of Information Law.
Lastly, Section 5 of the Joint Resolution included a "freedom of information" provision when it was adopted in 1938, for its language includes the following requirement imposed upon the Commission:
"An accurate record of the cost of the bridge and its approaches, the expenditures for maintaining, repairing, and operating the same, and of the daily tolls collected shall be kept and shall be available for the information of all persons interested."
Based on the foregoing, even if the Freedom of Information Law does not apply, and it appears that it does, the Commission would nonetheless be obligated by its enabling legislation to disclose records reflective of expenditures involved in the operation of its facilities.
I hope that I have been of assistance.
Robert J. Freeman Executive Director
cc: Niagara Falls Bridge Commission Thomas Garlock James C. Roscetti