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 FOIL-AO-15511

September 28, 2005

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 and hope that you will accept my apologies for the delay in response.

According to your letter, in your capacity as a member of the Ulster County Legislature, you serve "as the Designee for the minority on the Executive Committee of the Ulster County Development Corporation (UCDC)", which is " a private not-for-profit corporation that receives a yearly stipend from the Ulster County Legislature as a contract agency performing tasks related to economic development."

You indicated that a request made to the UCDC was rejected based on the claim that the UCDC is "a private corporation and hence not subject to the FOIL requests." You also received a request from a reporter seeking minutes of UCDC executive committee meetings, and you asked whether you "should comply with the FOIL request."

From my perspective, any records that you receive or possess in your capacity as designee of the Legislature fall within the scope of the Freedom of Information Law. In this regard, I offer the following comments.

First, the Freedom of Information Law applies 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."

Based on the foregoing, an agency typically is an entity of state or local government; not-for-profit and other corporate entities are generally not subject to the Freedom of Information Law.

There are judicial decisions, however, that indicate that a not-for-profit entity may be an agency, despite its corporate status, if there is substantial governmental control over its operations. For instance, in 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 found that volunteer fire companies, notwithstanding 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 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).

More recently, 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).

Your letter does not include detail concerning the creation of UCDC, i.e., whether it was created through the interest of the business community, or perhaps by government. If UCDC is a creation of government, I believe that it would fall within the coverage of the Freedom of Information Law. However, if there is no substantial governmental control, the conclusion may be different.

Second, and notwithstanding UCDC’s status under the Freedom of Information Law, records pertaining to it may nonetheless be available. That statute is applicable to agency records, and §86(4) defines the term "record" 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."

Due to the breadth of the definition, when records involving UCDC come into your possession as the County Legislature’s designee, I believe that they would constitute agency records that fall within the coverage of the Freedom of Information Law. You would not obtain them but for your status as a County official.

Further, again despite its corporate status, insofar as UCDC maintains or prepares records for the County, I believe that they are County records that fall within the coverage of the Freedom of Information Law [see Encore College Bookstores, Inc. V. Auxiliary Service Corporation of the State University, 87 NY2d 419 (1995)]. In that circumstance, a request for records prepared or kept for the County should, in my view, be made to the County’s records access officer. As you may be aware, the records access officer has the duty of coordinating an agency’s response to requests (see 21 NYCRR §1401.2). In response to any such requests, I believe that the records access officer would be required to direct the UCDC to disclose County records in a manner consistent with the Freedom of Information Law, or obtain and review the records sought in order to determine rights of access.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Chester Straub, Executive Director
Frank Murray, County Attorney