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FOIL-AO-16318

 

December 7, 2006

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 facts presented in your correspondence.

Dear

I have received your letter and hope that you will accept my apologies for the delay in response. You asked whether it “is possible to obtain copies of the Articles of Organization for a New York State LLC.”

Having researched the matter, I offer the following comments.

First, the Freedom of Information Law is applicable to agency records, 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, in general, an “agency” is an entity of state or local government in New York. A limited liability company, a private entity, would not, in my view, be obliged to give effect to the Freedom of Information Law.

Second, however, the articles of organization of a limited liability company must be filed with the Department of State. Here I point out that the documents kept by or for an agency fall within the coverage of the Freedom of Information Law, irrespective of their function or origin, for §86(4) defines “record” 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."

Third, §209 of the Limited Liability Company Law states that:

“A signed articles of organization and any signed certificate of amendment or other certificates filed pursuant to this chapter or of any judicial decree of amendment or cancellation shall be delivered to the department of state. If the instrument that is delivered to the department of state for filing complies as to form with the requirements of law and the filing fee required by any statute of this state in connection therewith has been paid, the instrument shall be filed and indexed by the department of state. The department of state shall not review such articles or certificates for legal sufficiency; its review shall be limited to determining that the form has been completed.”

Because a limited liability company’s articles of organization must be “delivered” to the Department of State, as soon as delivery is accomplished, such documents constitute agency records accessible under the Freedom of Information Law.

Having made an inquiry on your behalf, I was informed that they articles of organization may be obtained from the Department’s Division of Corporations.

I hope that I have been of assistance.

RJF:tt