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April 9, 1993

 

 

Ms. Caroline Silverstone, Supervisor
Town of Mamaroneck
Office of the Supervisor
Town Center
740 West Boston Post Rd.
Mamaroneck, N.Y. 10543-3319

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.

Dear Supervisor Silverstone:

I have received your letter of April 2 in which you sought an
advisory opinion concerning the Freedom of Information Law.

Specifically, you asked "whether the volunteer firefighters in
the Town of Mamaroneck's fire district may withhold certain
information from the Board of Fire Commissioners (Town Board) or
from the general public." The records in question consist of
reports of "income and expenditure of the annual fund raising
conducted by the volunteers" and of "the 1.8% funds from foreign
insurance companies that goes to the exempt firemen's benevolent
associations." You indicated that requests have been made for the
reports described above covering a period of five years.

In this regard, based on the assumption that the records in
question are maintained by a volunteer fire company, I offer the
following comments.

First, 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."

As such, the Freedom of Information Law generally pertains to
records maintained by entities of state and local governments.

However,in Westchester-Rockland Newspapers v. Kimball [50 NYS
2d 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).

"True, the Legislature, in separately
delineating the powers and duties of volunteer
fire departments, for example, has nowhere
included an obligation comparable to that
spelled out in the Freedom of Information
statute (see Village Law, art 10; see, also,
39 NY Jur, Municipal Corporations, §§560-588).
But, absent a provision exempting volunteer
fire departments from the reach of article 6-and there is none-we attach no significance to
the fact that these or other particular
agencies, regular or volunteer, are not
expressly included. 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, although it was contended that documents concerning the
lottery were not subject to the Freedom of Information Law because
they did not pertain to the performance of the company's fire
fighting duties, the Court held that the documents constituted
"records" subject to the Freedom of Information Law [see §86(4)].

More recently, another decision confirmed in an expansive
manner that volunteer fire companies are required to comply with
the Freedom of Information Law. That decision, S.W. Pitts Hose
Company et al. v. Capital Newspapers (Supreme Court, Albany County,
January 25, 1988), dealt with the issue in terms of government
control over volunteer fire companies. In its analysis, the Court
states that:

"Section 1402 of the Not-for-Profit
Corporation Law is directly applicable to the
plaintiffs and pertains to how volunteer fire
companies are organized. Section 1402(e)
provides:

'...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 corporations.'

"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.

"It should be further noted that the
Legislature, in enacting FOIL, intended that
it apply in the broadest possible terms.
'...[I]t is incumbent upon the state and its
localities to extend public accountability
wherever and whenever feasible' (Public
Officers Law, section 84).

"This court recognizes the long, distinguished
history of volunteer fire companies in New
York State, and the vital services they
provide to many municipalities. But not to be
ignored is that their existence is
inextricably linked to, dependent on, and
under the control of the municipalities for
which they provide an essential public
service."

Based upon the foregoing, it is clear that volunteer fire
companies are subject to the Freedom of Information Law.

Second, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in section 87(2)(a) through (i) of the Law.

If the reports were prepared by the company, insofar as they
consist of statistical or factual information. I believe that they
must be disclosed pursuant to §87(2)(g)(i). That provision
requires that "statistical or factual tabulations or data" found
with intra-agency materials" must be disclosed. If they were
prepared for the company by others, I do not believe that any of
the grounds for denial would be applicable and that the reports
would likely be available in their entirety.

Lastly, when records are available under the Freedom of
Information Law, it has been held that they must be made equally
available to any person, without regard to status or interest [see
M. Farbman & Sons v. New York City Health & Hosps. Corp., 62 NY 2d
75 (1984); Burke v. Yudelson, 51 AD 2d 673 (1976)]. The Law does
not generally distinguish among applicants, and the reason for
which a request is made is largely irrelevant to rights of access.
Therefore, when records of volunteer fire company are accessible
under the Freedom of Information Law, they would be available to
the Town Board and to the public generally.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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