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August 4, 1993

 

 

Ms. Loretta Prisco
Representative
Parents Action Committee for
Education
30 Westbury Avenue
Staten Island, NY 10301

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 Ms. Prisco:

I have received your letter of July 30 in which you requested
an advisory opinion on behalf of the Parents Action Committee for
Education (PACE).

According to your letter:

"In January 1993, the Superintendent of
District 31 convened a Committee of community
members to review the NYC HIV/AIDS Curriculum.
Members of this committee included parents,
Director of the SI AIDS Task Force, members of
the clergy, a gay person, UFT District Rep,
three members of the Community School Board, a
principal and a teacher. A Special Assistant
to the Superintendent chaired the several
meetings held. All meetings were held in the
District Office and closed to the public."

You wrote that when the Task Force had completed its work, minutes
of meetings and a summary report were submitted to the District.
PACE requested a copy of the report on July 24, and as of the date
of your letter to this office, it had received no response.
However, you added that the Superintendent has informed the news
media that the report is not "public".

In conjunction with the foregoing, you expressed the belief
that the meetings of the Task Force should have been open to the
public pursuant to the Education Law and that the report should be
disclosed to the public. You have sought my views on the matter.

In this regard, I offer the following comments.

First, with respect to meetings of the Task Force, I point out
that the Open Meetings Law is applicable to meetings of public
bodies, and §102(2) of that statute 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."

Recent decisions indicate generally that advisory ad hoc
entities, other than committees consisting solely of members of
public bodies, having no power to take final action fall outside
the scope of the Open Meetings Law. As stated in those decisions:
"it has long been held that the mere giving of advice, even about
governmental matters is not itself a governmental function"
[Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS
2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v.
Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see
also New York Public Interest Research Group v. Governor's Advisory
Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149,
motion for leave to appeal denied, 71 NY 2d 964 (1988)].
Therefore, it appears that the Task Force would not have been
subject to the Open Meetings Law.

Second, while I am not an expert on the subject, even when an
entity is not subject to the Open Meetings Law, if it holds its
meetings on school property, §414 of the Education Law may require
that its meetings be held open to the public. That provision
enables a board of education to authorize school property to be
used for certain purposes, such as:

"For holding social, civic and recreational
meetings and entertainments, and other uses
pertaining to the welfare of the community;
but such meetings, entertainment and uses
shall be non-exclusive and shall be open to
the general public" [§414(1)(c)].

If the Task Force met on school property to engage in a "civic"
function or a matter "pertaining to the welfare of the community",
it appears that §414 of the Education Law would have required that
its meetings be held open to the public. Again, since I lack
expertise regarding the Education Law, it is suggested that you
might contact the Office of Counsel at the State Education
Department to obtain additional guidance on the subject. That
office can be reached at (518) 474-6400.

Third, with respect to the report, I direct your attention to
the Freedom of Information Law. As you may be aware, that statute
pertains to agency records, and §86(4) defines the term "record"
broadly 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 on the foregoing, when a document or report is maintained by
or produced for an agency, it constitutes a "record" subject to
rights conferred by the Freedom of Information Law.

In §86(3) of the Freedom of Information Law, "agency" is
defined 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, a school district or school board would clearly constitute
an "agency". However, if the Task Force is not a public body
because, based on judicial decisions, it does not perform a
governmental function, it would not be an agency, for it would not
perform that function. If that is so, the only ground for denial
in the Freedom of Information Law of likely relevance would in my
opinion be inapplicable. In brief, 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 §87(2)(a) through (i) of the Law. The
provision to which I alluded, §87(2)(g), permits an agency to
withhold "inter-agency or intra-agency materials", depending upon
their contents. From my perspective, since the Task Force is
apparently not an agency, the report transmitted to the
Superintendent would not consist of either inter-agency or intra-agency material. If that is so, §87(2)(g) could not be asserted as
a basis for denial. Moreover, in view of the information that you
provided, none of the other grounds for denial would be applicable.

Lastly, although I am unaware of whether or when a response to
your request may be been given, I point out that the Freedom of
Information Law provides direction concerning the time and manner
in which an agency must respond to requests. Specifically, §89(3)
of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

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

RJF:jm

cc: District Superintendent
Christy Cugini