February 18, 2009
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.
As you are aware, I have received your letter and the materials relating to it. Please accept my apologies for the delay in response.
You have sought an advisory opinion concerning the status of the Jefferson Union Management Association (JUMA) under the Freedom of Information Law. By way of background, you wrote that JUMA was established by the Tuckahoe Housing Authority as a not-for-profit corporation under §501(c)(3) of the Internal Revenue Code. You added that JUMA and the Authority “have a self-described ‘identity of interest’”, and that the Chair of the Authority Board also serves as President of JUMA. He has denied your request for JUMA records, contending that JUMA is not subject to the Freedom of Information Law.
In this regard, I offer the following comments.
First, it has been held that municipal housing authorities in this state are subject to the New York Freedom of Information Law. By way of background, that statute applies to agency records and that §86(3) of the Law defines the term "agency" to include:
"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."
Section 3(2) of the Public Housing Law states that municipal housing authorities are public corporations. Since the definition of "agency" includes public corporations, I believe that a public housing authority is clearly an "agency" required to comply with the Freedom of Information Law, and it has been so held [Westchester Rockland Newspapers, Inc. v. Fischer, 101 AD 2d 840 (1985)].
Second, although the Freedom of Information Law generally applies to entities of state and local government, and not-for-profit corporations typically are not governmental entities and, therefore, fall beyond the scope of the Freedom of Information Law, the courts have found that the incorporation status of those entities is, alone, not determinative of their coverage under that law. Rather, they have considered the extent to which there is governmental control over those corporations, as well as their functions, in determining whether they fall within the scope of the Freedom of Information Law.
In the first such decision, 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)].
I note that the Appellate Division unanimously affirmed the findings of the Supreme Court regarding the foregoing.
Because JUMA is a creation of the Authority, and because the Authority appears to have control over JUMA in terms of the membership of its Board, I believe that JUMA is an “agency” required to comply with the Freedom of Information Law.
In an effort to enhance understanding of and compliance with the Freedom of Information Law, a copy of this opinion will be sent to Mr. Anthony J. DeCintio, Chair of the Authority and President of JUMA.
I hope that I have been of assistance.
Robert J. Freeman
cc: Anthony J. DeCintio