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FOIL-AO-18140

 

                                                                                                June 8, 2010

 


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


          We have received your letter and the correspondence attached to it. Having requested records from the Henderson Historical Society under the Freedom of Information Law, you were informed that it is not subject to that statute. You have sought our views on the matter.

           In this regard, the Freedom of Information Law is applicable to agency records, and §86(3) of the Law 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, the Freedom of Information Law generally applies to records of entities of state and local government in New York.

           Insofar as records maintained by the Society are "kept, held, filed, produced or reproduced...for an agency", such as a municipality, we believe that they would constitute "agency records" that fall within the scope of the Freedom of Information Law. This is not to suggest that a relationship of that nature would transform the Society into an agency required to comply with the Freedom of Information Law, but rather that records that it possesses may be maintained for an agency, and that those records would fall within the coverage of that statute. For purposes of that statute, the term "record" is defined 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."

           Historical societies are not-for-profit corporations according to § 1408 of the Not-for-Profit Corporation Law. Because a historical society is a not-for-profit, rather than a governmental entity, we do not believe that the historical society is an "agency" or that it is required to comply with the Freedom of Information Law.  Insofar as the Society might maintain records for the Town, your request should be directed to the Town’s records access officer.


             We hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.


                                                                                    Sincerely,


                                                                                    ROBERT J. FREEMAN
                                                                                    Executive Director

                                                                                    BY:     Kyle Chistriansen
                                                                                    Legal Intern

RJF:KC:jm