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FOIL-AO-17944

 

                                                                                                December 22, 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.

Dear

            As you are aware I have received the voluminous materials relating to your request for an advisory opinion sought on behalf of the Delaware County Board of Supervisors concerning the status of the Watershed Agricultural Council for the New York City Watershed, Inc. (“WAC”) under the Freedom of Information and Open Meetings Laws.

            By way of background, WAC is a not-for-profit corporation created in 1993, and its certificate of incorporation states that its “general purpose...is to control and prevent contamination of the watershed of New York City’s drinking water supplies from point and non-point sources of agricultural pollution by promoting best management practices while maintaining the economic vitality of agriculture.”  It is my understanding that the catalyst for the creation of WAC was a “filtration avoidance determination” (“FAD”) issued by the United States Environmental Protection Agency (EPA), enabling New York City (“the City”) to avoid the installation of costly filtration systems on its water supply.  Among the conditions imposed by the EPA was that the City regulate agriculture in the watershed as a means of controlling pollution.  WAC was created to meet that condition through the implementation of “whole farm plans” and the purchase of conservation easements in the watershed.  WAC cannot regulate, but the EPA required the City to develop, implement and fund a program to regulate agriculture, and WAC was retained by the City to administer the program and accomplish the City’s regulatory functions.  According to the materials that you provided, approximately 87% of WAC’s funding is from the City Department of Environmental Protection (“DEP”), and in order to receive funding from the City, farmers must sign contracts with WAC subjecting their farms to WAC’s control.

            In short, WAC exists solely for the purpose of enabling the City to meet federal requirements and serves as its agent to fulfill the City’s obligation to comply with the FAD.  Further, review of the materials indicates that the functions of WAC are largely under the control of DEP.

            For example, the agreement between DEP and WAC states that the Commissioner of DEP or his or her designee is a member of the WAC with voting powers and an ex-officio membership on all WAC committees.”  Section 1.06 states that:

The Program shall at all times be subject to the review and reasonable direction and approval of the Commissioner.  The Commissioner shall have the right to determine the amount, quality, acceptability and fitness of the work being performed by WAC under this Agreement, and her/his approval shall be a condition precedent to the right of WAC to receive any money under this Agreement.”

It would appear that “any money” includes moneys or funding from any source.  Section 5.1 states that:

WAC agrees that a copy of any and all written materials and documents, written or otherwise, that are prepared pursuant to this Agreement shall be forwarded to the Commissioner at her/his request.  DEP shall have the right to use all written materials, documents and information that are gathered or prepared pursuant to this Agreement for any purpose deemed appropriate by DEP.”

Section 5.03 states that “All vouchers and invoices for payment to be made hereunder, and the books, records and accounts upon which said vouchers or invoices are based are subject to audit by DEP and by the Comptroller of the City of New York....”  Section 7.01 states that WAC may hire consultants, but only “subject to the Commissioner’s written approval...”  Section 7.04 states that “Prior to the purchase of goods, materials or equipment directly by WAC in an amount in excess of $5000, WAC shall obtain the Commissioner’s or her/his designee’s written consent.”  Section 7.05 precludes WAC from entering into any subcontracts for the performance of its obligations “without the prior written approval of DEP.”  Section 1.02 of Exhibit C appended to the agreement concerning “Personnel and Operating Expenses” specifies that the expenditure of program funds for the annual salary of the WAC Chair is “subject to the approval of the Commissioner, or his/her designee.”  Similarly, the New York City Watershed Memorandum of Agreement, which includes a watershed land acquisition program, states in part that “The WAC, in consultation with NYCDEP, will be responsible for property owner contact and outreach for the Watershed Agricultural Program and the identification and implementation of management practices designed to enhance pollution protection.”

            Significantly, the “Whole Farms Contract” between DEP and WAC prepared in 1998 and later extended states in the fourth “Whereas” clause that:

“WAC...is a not-for profit corporation established to carry out the Watershed Agricultural Program, and related programs designed to protect the New York City water supply while maintaining the economic viability of agricultural and forest enterprises in the New York City watershed region...”

            From my perspective, WAC’s records are subject to the Freedom of Information Law either in their entirety, or at the very least, in great measure.  In this regard, I offer the following comments.

            First, as you may be aware, 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."

            While profit or not-for-profit corporations would not in most instances be subject to the Freedom of Information Law because they are not governmental entities, there are several determinations in which it was held that certain not-for-profit corporations, due to their functions and the nature of their relationship with government, are “agencies” that fall within the scope of the Freedom of Information Law.

            In the first decision in which it was held that a not-for-profit corporation may indeed be an “agency” required to comply with the Freedom of Information Law, Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case involving 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].

            It is noted that in Westchester-Rockland, the Court rejected the contention that a distinction must be made between a volunteer fire company, also a not-for-profit corporation, “on which a local government relies for the performance of an essential public service...and an organic arm of government” (id., 579).  In my view, ensuring a reliable supply of drinkable water to those in the City is also “an essential public service” reflective of the performance of a governmental function. 

            Another decision rendered by the Court of Appeals involved an entity that, in my view, is analogous in some respects to WAC.  Buffalo News v. Buffalo Enterprise Development Corporation [84 NY2d 488 (1994)] involved the status of a not-for-profit corporation, a local development corporation created under §1411 of the Not-for-Profit Corporation Law.  In its finding that the entity (“the BEDC”) “channels funds into the community and enjoys many attributes of public entities” (id., 492) and holding that the BEDC is an “agency”, the Court highlighted and italicized the portion of the definition of that term that refers to any “governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof.”  In the discussion of the matter, the decision states that:

“The BEDC seeks to squeeze itself out of that broad multipurposed definition by relying principally on Federal precedents in interpreting FOIL’s Federal counterpart, the Freedom of Information Act (5 U.S.C § 552).  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...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.  

“The BEDC’s purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo to attract investment and stimulate growth in buffalo’s downtown and neighborhoods.  As a city development agency, it is required to publicly disclose its annual budget.  The budget is subject to a public hearing and is submitted with its annual financial statements to the City of Buffalo for review.  Moreover, the BEDC describes itself in its financial reports and public brochure as an ‘agent’ of the City of Buffalo.  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).                  

            In a third decision involving a not-for-profit corporation, the “CDRC”,  having an “intimate” relationship with an agency, it was found that:

“...the CRDC was admittedly formed for the purpose of financing the cost of and arranging for the construction and management of the Roseland Waterpark project.  The bonds for the project were issued on behalf of the City and the City has pledged $395,000 to finance capital improvements associated with the park...

“Most importantly, the City has a potential interest in the property in that it maintains an option to purchase the property at any time while the bonds are outstanding and will ultimately take a fee title to the property financed by the bonds, including any additions thereto, upon payment of the bonds in full. Further, under the Certificate of Incorporation, title to any real or personal property of the corporation will pass to the City without consideration upon dissolution of the corporation.  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).

            The Appellate Division unanimously affirmed the findings of the Supreme Court regarding the foregoing [aff’d 739 NYS 2d 509, 292 AD2d 835 (2002)].

            Although there are distinctions in the functions of WAC and BEDC and the other entities referenced above that were found to be “agencies”, there are, based on the direction offered by the courts, and particularly the Court of Appeals, a variety of similarities, which, in my view, would lead a court to conclude that WAC is an “agency” subject to the Freedom of Information Law.   Those similarities are detailed in the materials that you provided, many of which describe the relationship between the City and WAC, and the examples offered earlier herein. 

            In short, as I understand the matter, WAC would not exist but for its relationship with the City, and based on the terms of its agreements with the City and the functions that it carries out, again, I believe that it constitutes an “agency” obliged to give effect to the Freedom of Information Law.

            Second, even if WAC is not an agency, many, if not all, of its records  fall within the scope of the Freedom of Information Law.  That statute defines the term “record”

"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."

            In consideration of the language quoted above, documents need not be in the physical possession of an agency to constitute agency records; so long as they are produced, kept or filed for an agency, the courts have held they constitute “agency records”, even if they are maintained apart from an agency’s premises.

            It has been found, for example, that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney’s fees were paid by applicants before the agency.  The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

            Perhaps most significant is a decision rendered by the Court of Appeals in which it was found that materials maintained by a corporation providing services pursuant to a contract for a branch of the State University that were kept  on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law.  I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

            Insofar as records maintained by WAC are “kept, held, filed, produced or reproduced...for an agency”, such as the DEP, I believe that they would constitute “agency records” that fall within the scope of the Freedom of Information Law.

            In consideration of the nature of the relationship between WAC and DEP, it appears that all of its records, perhaps with few exceptions, are maintained for DEP and, therefore, are subject to rights of access conferred by the Freedom of Information Law.                                                        
Lastly, with regard to the status of WAC’s governing body, the “council of directors”, under the Open Meetings Law, that statute is applicable to meetings of “public bodies”, and §102(2) defines the phrase "public body" to mean:

"...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."

Based on the foregoing, a public body is, in my view, an entity consisting of two or more members that is required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body.

            In Smith v. City University of New York, the Court of Appeals held that:

“in determining whether the entity is a public body, various criteria or benchmarks are material.  They include the authority under which the entity is created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies” [92 NYS2d 707, 714 (1998)].

            WAC’s by-laws indicate that the council of directors consists of from 15 to 19 members.  As either a not-for-profit corporation or a governmental entity, I believe that may carry out its functions and take action only by means of a quorum.  For reasons discussed earlier, WAC in my opinion conducts public business and carries out a governmental function for a public corporation, the City of New York.  Assuming the accuracy of the foregoing, each of the ingredients necessary to conclude that the WAC council of directors constitutes a “public body” subject to the Open Meetings Law can be met. 

            I hope that I have been of assistance.  Should any questions arise regarding the preceding commentary, please feel free to contact me.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Hon. James Eisel, Sr., Chairman,
Delaware County Board of Supervisors
WAC Council of Directors   
William Harding, Executive Director, Watershed Partnership Protection Council
Natasha Philip