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FOIL-AO-15972

May 17, 2006

Dear

Thank you for forwarding a copy of the unpublished January 7, 2005 Decision and Judgment in NY1 News v. New York State Urban Development Corporation, New York County. In response to your request, we have removed Advisory Opinion No. 14583 from our website.

Although you have not requested it, we would like to take this opportunity to comment on the contents of the decision and perhaps offer some clarification. In its decision, the court acknowledged the existence of the jury as an agency, as defined by the Freedom of Information Law, but failed to include any consideration of the Open Meetings Law, limiting its discussion to application of the Freedom of Information Law only. In our opinion, had the court considered application of the Open Meetings Law, it is likely that it would have reached a different result.

In this regard, we note that 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."

A public authority is a public corporation. Therefore, any public authority, such as the New York State Urban Development Corporation and its subsidiary the Empire State Development Corporation, would constitute an "agency", a governmental entity, that is subject to the Freedom of Information Law.

On pages three and four of its decision, the court indicates the rationale for its determination that the "jury" is an "agency" within the meaning of the Freedom of Information Law. As described by the court, the jury consists of thirteen individuals charged with the responsibility of conducting a competition and ultimately selecting a plan for a permanent memorial at the World Trade Center site. Contrary to petitioner’s argument, the court concluded that the jury was not merely advisory, but rather,

"... invested with complete decision-making authority, as evidenced by the guidelines for the memorial competition. . . . [which] clearly underpinned the understanding of the committee itself, as it thanked the respondent, the governor, the mayor, and the public in its January 13, 2004 statement for having granted it ‘complete authority and automomy to make this very difficult, but crucially important decision.’ [Emphasis Added]." P. 4.

The court further held that:

"Petitioner’s further argument that such a complete delegation of authority would have been illegal is unfounded as a matter of law."

We are in agreement with the judicial determination that the jury fits the definition of agency. In our opinion, if the jury would not exist but for its relationship with a public authority, and if it carries out its duties solely for or on behalf of an agency, it, too, would constitute an "agency" required to comply with the Freedom of Information Law.

What is lacking from the judicial decision, however, is the corresponding analysis regarding the Open Meetings Law. If the preceding assumptions and conclusions are accurate, the jury would be subject to the Open Meetings Law. That statute is applicable to public bodies, and §102(2) defines the phrase "public body" to include:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

Again, assuming that the court is correct and that the jury carries out its duties solely for or on behalf of an agency, we believe that it is an entity that conducts public business and performs a governmental function for a public corporation, i.e., a public authority. If that is so, it is a public body that falls within the coverage of the Open Meetings Law.

Like the Freedom of Information Law, the Open Meetings Law is based on a presumption of openness. Meetings of public bodies must be conducted open to the public, except to the extent that an executive session may be conducted in accordance with §105(1) of the Open Meetings Law. When the jury met, on August 7, 2003, with Mayor Michael Bloomberg, Governor George Pataki, and former Mayor Rudolph Guiliani, therefore, it is our opinion that the meeting should have been open to the public.

The court’s further analysis, that those portions of the video recording which reflect inter-agency communications between the Empire State Development Corporation, the Mayor and the Governor which are not statistical or factual information or data would be inconsistent with a finding that the jury’s meetings are subject to the Open Meetings Law. If the press and the public should have been permitted to attend the meeting of the jury (assuming a quorum was present), it is our opinion that there would be no ground for denying access to the videotape recording in its entirety. Further, we disagree that the exchange between the jury and former Mayor Giuliani could properly be characterized as "inter-agency" in nature. In short, Giuliani was not a public officer or employee during that exchange and therefore would not have been an officer or employee of an agency.

In short, if the jury is an "agency" and a "public body", which we believe it to be, meetings of the jury would be governed by all aspects of the Open Meetings Law, including provisions concerning notice, minutes and public access.

Thank you for bringing this decision to our attention.

Sincerely,

 

Camille S. Jobin-Davis
Assistant Director

CSJ:jm

cc: Monica Iken