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FOIL-AO-16698

 

July 30, 2007

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

As you are aware, I have received your letter, and I hope that you will accept my apologies for the delay in response.

You referred to an advisory opinion citing Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], in which the Court of Appeals determined that volunteer fire companies are “agencies” subject to the Freedom of Information Law, despite being not-for-profit corporations. The Court found that those entities perform what historically has been considered an essential governmental function, and that such function is carried out pursuant a contract with one or more municipalities. You asked whether the reasoning in that decision might be applicable in determining the status of association libraries and cooperative library systems under the Freedom of Information Law.

While I believe that all public libraries are essential to the communities that they serve, due to judicial precedent, I cannot advise that they fall within the coverage of the Freedom of Information Law, absent the issuance of a new judicial decision specifying that they are subject to that statute.
By way of background, the Freedom of Information Law is applicable 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."

Based on the foregoing, the Freedom of Information Law generally applies to records maintained by governmental entities.

Based on §253 of the Education Law and the judicial interpretation concerning that and related provisions, I believe that a distinction may be made between a public library and an association or free association library. The former would in my view be subject to the Freedom of Information Law, while the latter would not. Subdivision (2) of §253 states that:

"The term 'public' library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term 'association' library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term 'free' as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located."

The leading decision concerning the issue was rendered by the Appellate Division, Second Department, in French v. Board of Education, which includes the area in which you reside. The Court stated that:

"In view of the definition of a free association library contained in section 253 of the Education Law, it is clear that although such a library performs a valuable public service, it is nevertheless a private organization, and not a public corporation. (See 6 Opns St Comp, 1950, p 253.) Nor can it be described as a 'subordinate governmental agency' or a 'political subdivision'. (see 1 Opns St Comp, 1945, p 487.) It is a private corporation, chartered by the Board of Regents. (See 1961 Opns Atty Gen 105.) As such, it is not within the purview of section 101 of the General Municipal Law and we hold that under the circumstances it was proper to seek unitary bids for construction of the project as a whole. Cases and authorities cited by petitioner are inapposite, as they plainly refer to public, rather than free association libraries, and hence, in actuality, amplify the clear distinction between the two types of library organizations" [see attached, 72 AD 2d 196, 198-199 (1980); emphasis added by the court].

In view of the precedent in French, albeit involving a different context, it cannot be advised that an association library constitutes an “agency” subject to the Freedom of Information Law.

With regard to library systems, I believe that there are distinctions among them. Some, like association libraries, are not-for-profit entities that would likely be found by a court to be outside the coverage of the Freedom of Information Law. Others are creations and under the control of governmental entities, such as counties, and in those instances, they would be subject to that statute.

Lastly, you referred to a newspaper article indicating that I advised that a task force was subject to the Open Meetings Law because its membership consisted of members of two boards of trustees. I know of no case law that deals with that particular factual situation. However, the Open Meetings Law pertains to meetings of public bodies, and based on the definition of the phrase “public body” [§102(2)], it is clear in my opinion that a “committee or subcommittee or similar body” consisting solely of the members of a governing body would itself constitute a public body falling within the scope of the Open Meetings Law. From my perspective, when a “similar body”, such as the task force described in the article, consists solely of members of two governing bodies, I believe that a court would determine that, due to its membership, it is a public body subject to the requirements of the Open Meetings Law. Analogous are conference committees consisting of members of the Senate and Assembly, which in my view, clearly constitute public bodies falling within the coverage of that law.

I hope that I have been of assistance.

RJF:tt