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FOIL-AO-14957

October 20, 2004

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 August 4 in which you sought an advisory opinion concerning the status of the Brooklyn Public Library ("BPL") under the Freedom of Information Law. As you are aware, your letter as originally sent did not reach this office, and I hope that you will accept my apologies for the delay.

According to your letter, "BPL was incorporated pursuant to Chapter 606 of the Laws of 1902...and is a private not-for-profit corporation registered as a 501(c)(3) corporation by the Internal Revenue Service." You added, however, that "[w]hile the Library is a private corporation, by law its Board of Trustees consists entirely of 25 government appointees, including the Mayor of the City of New York, the Brooklyn Borough President and the Comptroller of the City of New York as ex officio members" and that the Mayor and the Borough President each appoint eleven members.

Based on judicial decisions that have consistently construed the Freedom of Information Law expansively, I believe that the BPL, despite its corporate status, is subject to the requirements of that statute. In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to agencies and §86(3) 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 consideration of the foregoing, as a general matter, the Freedom of Information Law pertains to entities of state and local government in New York.

Although not-for-profit corporations typically are not governmental entities and, therefore, fall beyond the scope of the Freedom of Information Law, the courts have found that the incorporation status of those entities is, alone, not determinative of their coverage under that law. Rather, they have considered the extent to which there is governmental control over those corporations, as well as their functions, in determining whether they fall within the scope of the Freedom of Information Law.

In the first such decision, Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], the issue involved 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).

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].

In another decision rendered by the Court of Appeals, Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court found that a not-for-profit corporation, based on its relationship with an agency, the City of Buffalo 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.

"...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).

More recently, in a case involving the City of Canandaigua and a not-for-profit corporation, the "CRDC", the court found that:’

"...The CRDC denies the City has a controlling interest in the corporation. Presently the Board has eleven members, all of whom were appointed by the City (see Resolution #99-083). The Board is empowered to fill any vacancies of six members not reserved for City appointment. Of those reserved to the City, two are paid City employees and the other three include the City mayor and council members. Formerly the Canandaigua City Manager was president of the CRDC. Additionally, the number of members may be reduced to nine by a board vote (see Amended Certificate of Incorporation Article V(a)). Thus the CRDC’s claim that the City lacks control is at best questionable.

"...As in Matter of Buffalo News, supra, the CRDC’s intimate relationship with the City and the fact that the CRDC is performing its function in place of the City necessitates a finding that it constitutes an agency of the City of Canandaigua within the meaning of the Public Officers Law and therefore is subject to the requirements of the Freedom of Information Law...[Canandaigua Messenger, Inc. v. Wharmby, Supreme Court, Ontario County, May 11, 2001, affirmed 292 AD2d 835 (2002)].

I note that the Appellate Division unanimously affirmed the findings of the Supreme Court regarding the foregoing.

In this instance, because New York City government officials have complete control over the membership of the BPL’s Board of Directors, and since ninety percent of its budget is obtained from the City and State, I believe that the BPL constitutes an "agency" required to comply with the Freedom of Information Law.

By way of contrast, I point out that the Metropolitan Museum of Art was recently found to be outside the coverage of the Freedom of Information Law. In considering its statute in relation to that status, the court found that:

"....the City does not control the Museum’s Board or management...While five City officials serve as ex officio trustees on the Museum’s Board of Trustees, the Board consists of up to 40 trustees who are self-elected, and the City has no authority to hire or fire the Museum’s Director or President. (Id.) The City’s operating and capital budgets are now largely privately funded (see id. at ¶23), and are not subject to government approval. Nor, however important its cultural purpose, does the Museum perform services that have been recognized as a governmental function.

"On these facts, the Museum does not qualify as an ‘agency’ for FOIL purposes. (Compare Matter of Buffalo News, Inc. V. Buffalo Enterp. Dev. Corp., 84 NY2d 488, 490 [1994][holding FOIL applicable to local development corporation which was defined by N-PCL 1411 [a] as not-for-profit corporation ‘performing an essential governmental function’, and which had budget subject to public review and significant representation by City officials on its Board of Directors] with Lugo v. Scenic Hudson, Inc., 258 Ad2d 626 [2d Dept 1999][holding FOIL inapplicable to not-for-profit corporation which had self-governed Board of Directors, operating budget not subject to government approval, and primarily private funding].)

"Finally, as the Museum is not controlled by elected or other public officials, there is no danger that they may act through the Museum as means of shielding their actions from public scrutiny. Thus, FOIL’s important purpose of promoting open government and providing the public with access to governmental records (see Matter of Buffalo News, 84 NY2d at 492) is not implicated (Metropolitan Museum Historic District Corporation v. Philippe De Montebello, Supreme Court, New York County, May 14, 2004)."

In short, in view of the absence of those attributes found by the court in Metropolitan Museum to be necessary to conclude that an entity is subject to the Freedom of Information Law, and the presence of those attributes in the case of the BPL, it is clear in my opinion that a court would find that the BPL is required to give effect to that statute.

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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