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 FOIL-AO-14077

June 12, 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.

Dear

I have received your letter of May 23 and the materials attached to it. Your inquiry involves the status of the board of directors of the Fulton Community Revitalization Corporation ("the FCRC") under the Open Meetings Law.

You wrote that the FCRC has been asked by the City of Fulton to:

"1. Employ a person(s) who will be in charge of implementation of the comprehensive plan and report to the legislative body on a periodic basis as to the progress; and

2. Seek private funding and public funding/grants to retain personnel to implement the comprehensive plan."

You added that it is expected that the board will consist of eleven to thirteen members and include the Mayor and President of the Common Council of the City of Fulton, and perhaps the Executive Director of the City's Community Development Agency. No other members of the Board "will be voting members of the executive anch of the legislative anch of the City of Fulton."

A review of FCRC's certificate of incorporation and its by-laws indicate that it is a not-for- profit corporation and that eligibility for membership on the board is conditioned on residence in the City or "some interest in the City which relate to the purposes of the Corporation..." One-third of the directors are elected at an annual meeting by a majority of the directors then in office. There is nothing in the provisions specifying that the board must include City officials, their representatives or their designees.

In this regard, in general, the Open Meetings Law and its companion, the Freedom of Information Law, are applicable to governmental entities, including not-for-profit corporations that are, in essence, creations or extensions of government.

The Freedom of Information Law pertains 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 the first decision in which it was held that a not-for-profit corporation may be an "agency" required to comply with the Freedom of Information Law, [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, the state's highest court, 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 State's highest 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 oad 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).

For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as oad 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 ing 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].

In the same decision, the Court noted that:

"...not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id., 581).

In Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court of Appeals found again that a not-for-profit corporation, based on its relationship to an agency, was itself an agency subject to the Freedom of Information Law. The decision indicates that:

"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 (see, e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). 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 for 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...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).

The Open Meetings Law is applicable to meetings of public bodies, and §102(2) of that statute defines the phrase "public body" to mean:

"any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body." In Smith v. City University of New York [92 NY2d 707 (1999)], the Court of Appeals held that a student government association carried out various governmental functions on behalf of CUNY and, therefore, that its governing body is subject to the Open Meetings Law. In its consideration of the matter, the Court found that:

"in determining whether the entity is a public body, various criteria or benchmarks are material. They include the authority under which the entity is created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies" (id., 713).

As I understand it by-laws, FCRC has a relationship with government, but its purposes are not exclusively governmental in nature. Further, although two and perhaps three members of the FCRC board are expected to be City officials, the by-laws do not require that any board member be a City official. Further, City government has no official role in the designation or selection of members of the board. If my understanding is accurate, the FCRC board would not constitute a "public body", and its meetings, therefore, would not be subject to the Open Meetings Law.

Similarly, I do not believe that the FCRC would constitute an "agency" that falls within the coverage of that statute. However, some of its records likely would be subject to rights of access conferred by that statute.

The Freedom of Information Law is applicable to agency records, and based on the definition of "agency" cited earlier, the City of Fulton clearly falls within the scope of that law. Significant in this instance is the definition of "record." Section 86(4) defines that term 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."

Based on the foregoing, the Court of Appeals has found that documents maintained by a not-for- profit corporation providing services for a anch of the State University were kept on behalf of the University and constituted agency "records" falling within the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [ see Encore College Bookstores, Inc. v. Auxillary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410, 417 (1995)]. Therefore, if a document is produced for an agency, it constitutes an agency record, even if it is not in the physical possession of the agency.

Further, due to the eadth of the definition, when records involving FCRC come into possession of City officials, I believe that they would constitute agency records that fall within the coverage of the Freedom of Information Law.

In sum, it does not appear that the FCRC is an agency for purposes of the Freedom of Information Law or a public body subject to the Open Meetings Law. Nevertheless, records maintained by the City of Fulton or for the City pursuant to its relationship with the FCRC would, in my opinion, be subject to rights of access conferred by the Freedom of Information Law.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Mayor, City of Fulton
President of the Common Council
Carol Rutledge