June 17, 2010
FROM: Camille S. Jobin-Davis, Assistant 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.
We are in receipt of a request from your letter requesting an advisory opinion concerning application of the Freedom of Information Law to records of the Eastchester Volunteer Ambulance Corps (EVAC).
In this regard, we 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 department, the Court of Appeals found that volunteer organizations, despite their status as not-for-profit corporations, are "agencies" subject to the Freedom of Information Law where the local government relies for performance of essential public service. 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].
Moreover, §1402 of the Not-for-Profit Corporation Law, which pertains to volunteer fire corporations, states in part that:
"(d) Any fire, hose, protective or hook and ladder corporation heretofore organized under any general law with the consent of the town board in the territory served by such corporation is hereby legalized and confirmed, notwithstanding the omission of any town board to appoint or confirm the members of such corporations as town firemen. Any such corporation shall hereafter be subject to the provisions of this section.
(e)(1) A fire, hose, protective or hook and ladder corporation heretofore incorporated under any general law or a fire corporation hereafter incorporated under this section shall be under the control of the city, village, fire district or town authorities having, by law, control over the prevention or extinguishment of fires therein. Such authorities may adopt rules and regulations for the government and control of such corporation...
(3) The emergency relief squad of a fire corporation incorporated under this section or subject to the provisions thereof shall have power to furnish general ambulance service when duly authorized under the provisions of section two hundred nine-b of the general municipal law."
In turn, section 209-b(2)(a) of the General Municipal Law states that:
"General ambulance service. A. The governing board of any city, town which has a fire department, village or fire district which has in its fire department an emergency rescue and first aid squad composed mainly of volunteer firefighters, by resolution, may authorize any such squad to furnish general ambulance service for the purpose of (1) transporting any sick, injured or disabled resident or person found within city, town, village or fire district to a hospital, clinic, sanatorium or other place for treatment and care and returning any such person therefrom if still sick, injured or disabled and (2) transporting any sick, injured or disabled resident of the city, town, village or fire district from a hospital, clinic, sanatorium or other place where such person has received treatment and care to any other place for treatment and care or to such person's home..."
Further, in a decision in which it was held that several volunteer companies are subject to the Freedom of Information Law, it was stated that:
"These fire companies are formed by consent of the Colonie Town Board. The Town has control over the membership of the companies, as well as many other aspects of their structure, organization and operation (section 1402). The plaintiffs' contention that their relationship with the Town of Colonie is solely contractual is a mischaracterization. The municipality clearly has by law, control over these volunteer organizations which reprovide a public function" (S.W. Pitts Hose Company et al. v. Capital Newspapers, Supreme Court, Albany County, January 25, 1988)."
In the only case of which we are aware on the subject, the Appellate Division, Second
Department, which includes Westchester County, held that a volunteer ambulance corporation performing its duties for an ambulance district is subject to the Freedom of Information Law. In so holding, the decision stated that:
"The Court of Appeals has rejected any distinction between a volunteer organization on which a local government relies for the performance of an essential public service and an organic arm of government (see, Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 579, 430 N.Y.S.2d 574, 408 N.E.2d 904).
"The appellant performs a governmental function, and it performs that function solely for the Mastic Ambulance District, a municipal entity and a municipal subdivision of the Town of Brookhaven (hereinafter the Town). The appellant submits a budget to and receives all of its funding from the Town, and the allocation of its funds is scrutinized by the Town. Thus, the appellant clearly falls within the definition of an agency and is subject to the requirements of FOIL" [Ryan v. Mastic Ambulance Company, 212 AD 2d 716, 622 NYS 2d 795, 796 (1995)].
It is emphasized that the decision cited above pertained to an ambulance company performing its duties for an ambulance district, which is itself a public corporation. If the relationship between EVAC and the Town of Eastchester, the Villages of Bronxville and Tuckahoe is based upon the statutes described above, we believe that EVAC is an "agency" required to comply with the Freedom of Information Law. On the other hand, if there is no such relationship, and if EVAC is fully independent of the Town, it would appear that the organization would fall beyond the coverage of the Freedom of Information Law.
Nevertheless, in consideration of EVAC’s relationship with multiple municipalities, it is possible that some of the records pertaining to EVAC may fall within the scope of the Freedom of Information Law, regardless of whether it is considered an "agency." 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."
Based upon the language quoted above, so long as they are produced, kept or filed for an agency, such as a town or village, the courts have held they constitute "agency records." Insofar as records pertaining to EVAC are maintained by an agency, i.e. a town or village, those records would be subject to the FOIL. Similarly, insofar as records maintained by EVAC are "kept, held, filed, produced or reproduced...for an agency, we believe that they would constitute "agency records" that fall within the scope of the Freedom of Information Law.
In other circumstances in which entities or persons outside of government maintain records for a government agency, it has been advised that requests for those records be made to the records access officer of that agency. Pursuant to regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), the records access officer has the duty of coordinating an agency’s response to requests for records. If EVAC maintains records for a municipality, a request should be made to the municipality’s records access officer. To comply with the Freedom of Information Law and the implementing regulations, the records access officer would either direct EVAC to disclose the municipality’s records in a manner consistent with law, or acquire the records from EVAC in order that s/he could review the records for the purpose of determining rights of access.
On behalf of the Committee on Open Government, we hope this is helpful to you.