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FOIL-AO-15953

May 10, 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 information presented in your correspondence.

Dear

We are in receipt of a request from your office for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to Heritage Springs Sewer Works, Inc., a sewage-works corporation created pursuant to Article 10 of the New York Transportation Corporations Law. It is your contention that Heritage, as a sewage-works corporation entity which "(a) would not exist but for the permission of a municipality; and (b) exercises a governmental function on behalf of or instead of a municipality; and (c) the municipality exercises close oversight (here, including approving the rates charged to the public and requiring financial guarantees, including holding the corporation’s stock in escrow), ... is subject to FOIL."

In this regard, we offer the following.

First, as you may be aware, 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."

It is not clear whether a sewage-works corporation is an "agency." While profit or not-for-profit corporations would not in most instances be subject to the Freedom of Information Law because they are not governmental entities, there are several determinations in which it was held that certain not-for-profit corporations, due to their functions and the nature of their relationship with government, are "agencies" that fall within the scope of the Freedom of Information Law.

In the first decision in which it was held that a not-for-profit corporation may indeed 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 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 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).

Here, a certificate of incorporation for a sewage-works corporation cannot be filed without proof of consent from a local governing body attached thereto [Transportation Corporations Law, §116(1)], and a sewage-works corporation is required to set "reasonable and adequate rates agreed to between the corporation and the local government body or bodies..." (Transportation Corporations Law, §121), and a sewage-works corporation may acquire land by condemnation (Transportation Corporations Law, §124). "Condemnation" as defined by Black’s Law Dictionary, Sixth Edition, is the "process of taking private property for public use through the power of eminent domain." In our experience, the power to acquire land by eminent domain is only vested in federal, state and local government entities.

Based on the foregoing, because the relationship between Heritage and the permissive municipality, governed by the explicit parameters of Article 10 of the Transportation Corporations Law is similar to that of the BEDC and the City of Buffalo, it is our opinion that the Heritage would likely be found by a court to constitute an "agency" required to comply with the Freedom of Information Law.

Further, in consideration of Heritage’s relationship with a municipality, it appears that some of Heritage’s records may fall within the scope of the Freedom of Information Law, regardless of whether it is considered an "agency.". For purposes of that statute, the term "record" is defined 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 upon the language quoted above, documents need not be in the physical possession of an agency to constitute agency records; so long as they are produced, kept or filed for an agency, the courts have held they constitute "agency records", even if they are maintained apart from an agency’s premises.

For instance, it has been found that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney’s fees were paid by applicants before the agency. The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Perhaps most significant is a decision rendered by the Court of Appeals, the state's highest court, in which it was found that materials received by a corporation providing services pursuant to a contract for a branch of the State University that were kept on behalf of the University constituted "records" falling with 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. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

Insofar as records maintained by Heritage are "kept, held, filed, produced or reproduced...for an agency", i.e., for the purpose of providing services that would otherwise be provided by that entity, we believe that they would constitute "agency records" that fall within the scope of the Freedom of Information Law.

In other circumstances in which entities or persons outside of government maintain records for a government agency, it has been advised that requests for those records be made to the records access officer of that agency. Pursuant to regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), the records access officer has the duty of coordinating an agency’s response to requests for records. In the context of the situation that you described, if Heritage maintains records for the municipality, a request should be made to the municipality’s records access officer. To comply with the Freedom of Information Law and the implementing regulations, the records access officer would either direct Heritage to disclose the municipality’s records in a manner consistent with law, or acquire the records from Heritage in order that he or she could review the records for the purpose of determining rights of access.

To reiterate, even if Heritage is determined not to be an "agency" pursuant to case law outlined above, the responsibility to give effect to or comply with the Freedom of Information Law may not involve Heritage, but rather the government agency whose records are maintained by Heritage on its behalf.

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

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director

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