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 FOIL-AO-15930

April 24, 2006

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, unless otherwise indicated.

Dear

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information and Open Meetings Laws to Niagara County Head Start, of which you are a member of the Board of Directors. You wrote that

"Niagara County Head Start is a non-profit agency that administers a Federal Grant for the purpose of providing Head Start programming for needy children in Niagara County New York. The agency is in no way connected to Niagara County Government, however it was many years ago before becoming incorporated. Federal funds are granted to Niagara County Head Start for the sole purpose of administering and providing the Head Start program in Niagara County."

Further, you wrote that

"...minutes and agendas are not made available to the staff of the agency or parents of the children in the program, and staff have been directly told that they may not attend meetings of Policy Council or Board of Directors. I am very uncomfortable with both of these practices and would use a letter from you to strongly advise the Executive Director to make the appropriate changes."

From our perspective, it is not entirely clear whether Niagara County Head Start is subject to the requirements of the Freedom of Information Law, however, we have reason to believe that Niagara is required to disclose its records, with exceptions.

By way of background, the New York 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 of 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."

As such, the Freedom of Information Law generally applies to records maintained by entities of state and local government. Although it appears that Head Start performs a governmental function, it is questionable whether it constitutes a "governmental entity" or, therefore, is an agency subject to the Freedom of Information Law.

It is also our understanding that Head Start programs are created by means of the authority conferred by the federal government, pursuant to updated provisions of the Economic Opportunity Act of 1964. Located within Title 42 of the United States Code, §9831 of Chapter 105, sets forth the purposes and parameters for Head Start programs as follows:

"to promote school readiness by enhancing the social and cognitive development of low-income children through the provision, to low-income children and their families, of health, educational, nutritional, social, and other services that are determined, based on family needs assessments, ..." (§9831).

The Secretary of Health and Human Services is authorized under this federal law to designate any local public or private nonprofit or for-profit agency within a community as a Head Start agency, which agency can then transfer such responsibility to a "delegate agency" [§9832(2)]. As such, by means of the delegated authority, those entities apparently perform federal duties for the previously designated organization.

Subchapter II of Chapter 105 expresses an intent to enhance public participation as well as disclosure of information regarding the functions and duties of community action agencies. Specifically, §9839(a) states in relevant part that:

"Each Head Start agency shall observe standards of organization, management, and administration which will assure, so far as reasonably possible, that all program activities are conducted in a manner consistent with the purposes of this subchapter and the objective of providing assistance effectively, efficiently, and free of any taint of partisan political bias or personal or family favoritism. Each such agency shall establish or adopt rules to carry out this section, which shall include rules to assure full staff accountability in matters governed by law, regulations, or agency policy. Each agency shall also provide for reasonable public access to information, including public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency or other agencies engaged in program activities or operations involving the use of authority or funds for which it is responsible."

Again, while it is unlikely that the Freedom of Information Law applies to records maintained by a delegate agency, we believe that the federal legislation quoted above indicates an intent to ensure accountability to the public by providing "...reasonable public access to information, ... and reasonable public access to books and records of the agency...."

Turning now to your questions pertaining to access to meetings of the Policy Council or Board of Directors, the Open Meetings Law applies to public bodies, entities that carry out governmental function for governmental entities. In view, it does not appear that the Policy Council or Board of Directors would constitute a "public body" subject to the Open Meetings Law. Section 9839(a) indicates an intent to ensure "...reasonable public access to information, including public hearings at the request of appropriate community groups...". Accordingly, it is unclear whether the intent of the legislation was to provide public access to meetings of the Policy Council or Board of Directors.

On behalf of the Committee on Open Government, we hope this is helpful to you.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJ:tt