September 29, 2008
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.
We are in receipt of your request for an advisory opinion concerning whether the Hepburn Library of Norfolk is an “agency” subject to the Freedom of Information Law in light of the First Department’s decision in Metropolitan Museum Historic District Coalition v. De Montebello, 20 AD3d 28, 796 NYS2d 64 (2005). Our opinion, you indicated, will be instructive to your client, the North Country Library System, in providing clear guidance to any similarly situated member libraries.
In your letter you indicated that the Hepburn Library “receives an appropriation from the Town of Norfolk ... transferred to the library for its sole control and use ... as directed by its Board of Trustees”, and that it also receives private donations. You wrote that the Library “recommends a slate of trustees to the Town of Norfolk who then appoints the Board” but that trustee vacancies are filled by the Library Board. You added that the Library sets personnel policy, that the employees are “not public employees” and that the Library “is not controlled in their decision and policy making process by the Town.” In an effort to provide guidance with respect to your questions, we 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 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.
Second, in conjunction with §253 of the Education Law and the judicial interpretation concerning that and related provisions, we believe that a distinction may be made between a public library and an association or free association library. In our view, typically the former would 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 in French v. Board of Education, in which 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 our opinion, the language offered by the court clearly provides a basis for distinguishing between an association or free association library as opposed to a public library. For purposes of applying the Freedom of Information Law, we do not believe that an association library, a private non-governmental entity, would be subject to that statute; contrarily, it is likely that a public library, which is established by government and "belong[s] to the public" [Education Law, §253(2)] would be subject to the Freedom of Information Law.
It is emphasized that many libraries are characterized as “public”, in that they can be used by the public at large. Nevertheless, some of those libraries are governmental in nature, while others are not-for-profit corporations. The latter group frequently receives significant public funding. Because they are not governmental entities, however, they would not be subject to the Freedom of Information Law.
In addition to the information you provided with respect to the Hepburn Library, we learned from the Hepburn Library website (www.nc3r.org/norfolk/) that it is one of seven Hepburn Libraries in St. Lawrence County, made possible through the donation of A. Barton Hepburn, who also established endowments to ensure their continued operation. The website for the Hepburn Library of Edwards indicates that “Each town agreed to raise a specific amount of tax monies, annually to continue the support of the library” (http://www.herd.org/edwards/library/).
As you note, in 2005 the Appellate Division affirmed a New York County Supreme Court case in which the court determined that the Metropolitan Museum of Art was outside the coverage of the Freedom of Information Law. In considering its status in relation to that statute, the court found that:
“...the Museum is a not-for-profit educational corporation controlled by a Board of Trustees consisting of 40 self-elected individuals. The City retains no authority to hire or fire the Museum’s Director or President, and no City representatives sit on the Executive Committee, although five of seven ex-officio Trustees are City officials. Moreover, the Museum’s operating and capital budgets are primarily privately funded, and its budgets are not subject to City approval or public hearings.
“Since, as the Supreme Court correctly held, the Museum is not controlled by municipal officials, there is no danger that they can act through the Museum in order to shield their actions from public scrutiny, and FOIL’s overriding purpose of promoting “open and accessible government... a hallmark of a free society” (Matter of Russo v. Nassau County Community College, 81 NY2d 690, 697, 603 NYS2d 294 ), is not implicated” [Metropolitan Museum Historic District v. DeMontebello, 20 AD3d 28 at 37-38, 796 NYS2d 64 at 71 (1st Dept. 2005)].
In light of this decision, and the information cited above, it appears that the Hepburn Library of Norfolk is a private non-governmental entity; however, it is difficult to render a precise opinion without more explicit judicial guidance.
Consider, for example, the following three judicial decisions regarding not-for-profit corporations and their status as “agencies” subject to the Freedom of Information Law:
In the first, Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], the issue involved 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 another decision rendered by the Court of Appeals, Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court found that a not-for-profit corporation, based on its relationship with an agency, the City of Buffalo 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.
"...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).
More recently, in a case involving the City of Canandaigua and a not-for-profit corporation, the “CRDC”, the court found that:’
“...The CRDC denies the City has a controlling interest in the corporation. Presently the Board has eleven members, all of whom were appointed by the City (see Resolution #99-083). The Board is empowered to fill any vacancies of six members not reserved for City appointment. Of those reserved to the City, two are paid City employees and the other three include the City mayor and council members. Formerly the Canandaigua City Manager was president of the CRDC. Additionally, the number of members may be reduced to nine by a board vote (see Amended Certificate of Incorporation Article V(a)). Thus the CRDC’s claim that the City lacks control is at best questionable.
“...As in Matter of Buffalo News, supra, the CRDC’s intimate relationship with the City and the fact that the CRDC is performing its function in place of the City necessitates a finding that it constitutes an agency of the City of Canandaigua within the meaning of the Public Officers Law and therefore is subject to the requirements of the Freedom of Information Law...[Canandaigua Messenger, Inc. v. Wharmby, Supreme Court, Ontario County, May 11, 2001, affirmed 292 AD2d 835 (2002)].
We note that the Appellate Division unanimously affirmed the findings of the Supreme Court regarding the foregoing.
On the one hand, the Town has the power to appoint the members of the Library Board, unless there is a vacancy. In that event, the Town-appointed Board fills the vacancy. On the other, the Library Board appears to be independent with respect to the development of policy and the day to day operation of the Library. On balance, in our view, due to the direct authority of the Town to appoint, and its indirect authority to fill vacancies on the Board, it is suggested that it would likely be found that the Library is an agency subject to the Freedom of Information Law.
It is noted that confusion concerning the application of the Freedom of Information Law to non-governmental libraries open to the public has arisen in several instances, perhaps because, as you are likely aware, its companion statute, the Open Meetings Law, is applicable to meetings of their boards of trustees. The Open Meetings Law, which is codified as Article 7 of the Public Officers Law, is applicable to public and association libraries due to direction provided in the Education Law. Specifically, §260-a of the Education Law states in relevant part that:
"Every meeting, including a special district meeting, of a board of trustees of a public library system, cooperative library system, public library or free association library, including every committee meeting and subcommittee meeting of any such board of trustees in cities having a population of one million or more, shall be open to the general public. Such meetings shall be held in conformity with and in pursuance to the provisions of article seven of the public officers law."
Again, since Article 7 of the Public Officers Law is the Open Meetings Law, meetings of boards of trustees of various libraries must be conducted in accordance with that statute, even though the records of those entities may fall beyond the coverage of the Freedom of Information Law.
Should you wish to submit additional information regarding the status of the Library Board, we would be willing to review our opinion.
On behalf of the Committee on Open Government, we hope that this is helpful to you.
Camille S. Jobin-Davis