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FOIL-AO-15703

December 21, 2005

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 information presented in your correspondence, unless otherwise indicated.

Dear

I have received your inquiry in which you sought guidance concerning the use of the terms "agency" and "governing body" as they appear in §87(1) of the Freedom of Information Law.

In this regard, 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."

An agency may be headed by either a group of persons who carry out their functions collectively, as a body, or by an individual. In some instances, the group of persons, the governing body, serves as the primary creator of policy and possesses decision making authority. A town board, a city council, a board of education, and the boards of public authorities and industrial development agencies, to name a few, are governing bodies. In each instance, those bodies serve public corporations. As suggested to you by phone, many other agencies are headed by a single individual. The agency that houses this office, the Department of State, is headed by the Secretary of State; many state agencies are headed by commissioners. In those instances, there is no governing body.

Section 87(1) of the Freedom of Information Law distinguishes public corporations, which, again, are certain kinds of agencies, from others. Paragraph (a) refers to the obligation of the "the governing body of each public corporation" to "promulgate uniform rules and regulations for all agencies in such public corporation..." Paragraph (b) refers to the obligations of "each agency", which includes public corporations, as well as those headed by a single individual, and provides direction concerning the nature and scope of rules and regulations.

Section 89(4)(a) pertains to the right to appeal a denial of access and states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In my view, the references to the "head, chief executive or governing body" were necessary to guarantee the right to appeal for the reason suggested above, that some agencies are headed by governing bodies, while others are headed by a single individual. Without those references, the right to appeal a denial of access to records would have been eliminated.

With respect to the issue that you raised, in a situation in which the Freedom of Information Law applies to a public corporation, such as a city, town, village, school district, etc., I believe that the direction is clear. As stated above, paragraph (a) of §87(1) refers to public corporations and states in relevant part that "the governing body of each public corporation" has the responsibility to promulgate procedural rules and regulations regarding the implementation of the Freedom of Information Law.

I hope that I have been of assistance.

RJF:jm