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August 9, 1993

 

 

Mr. Christopher J. Nolan
Corporate Counsel
Newsday
235 Pinelawn Road
Melville, N.Y. 11747-4250

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 Mr. Nolan:

As you are aware, I have received your letter of August 2 in
which you requested an advisory opinion concerning the status of
the Queens Borough Public Library ("the Library") under the Freedom
of Information Law.

By way of background, you wrote that the issue has arisen in
conjunction with a Newsday reporter's efforts to obtain financial
information pertaining to the Library in general, and its Board of
Trustees in particular. You added than in an oral denial of the
reporter's request, he was informed that the Library is a "private
non-profit corporation which simply contracts with the City of New
York to provide free public libraries to the residents of Queens,"
and that, therefore, it is not a government agency falling within
the coverage of the Freedom of Information Law.

Enclosed with your letter are copies of various materials
describing the history of the Library, including legislation
enacted in 1907 and later amended in 1913. The legislation of 1907
"incorporates" the "Queens Borough Public Library," and
significantly, in my opinion, states in Section 1 that the Library
constitutes "a body corporate and politic." Section 3 states in
part that the Library's Board of Trustees "shall have absolute
control of the City of New York for the maintenance of libraries
conducted, or to be conducted in the Borough of Queens..." The
amendment to the act of incorporation enacted in 1913 states that
the Mayor, the Comptroller and the President of the Board of
Aldermen shall be ex officio members of the Board of Trustees and
that the "trustees shall hereafter be chosen and vacancies
occurring in such office filled by appointment by the Mayor of the
City of New York."

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable 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."

It is noted that the definition makes specific reference to public
corporations and any other governmental entity performing a
governmental or proprietary function for a municipality. In my
view, by constituting the Library as "a body politic and corporate"
in the Act of Incorporation enacted by the State Legislature, the
Legislature created a public corporation. I point out that the
primary meaning of "politic" according to an ordinary dictionary
definition of that term is "political", and that "political" is
defined to mean "of or relating to government, a government, or the
conduct of government" (see Webster's Seventh New Collegiate
Dictionary." Similarly, Black's Law Dictionary defines the phrase
"political corporation" to mean a "public or municipal corporation;
one created for political purposes, and having for its object the
administration of governmental powers of a subordinate or local
nature.

Based upon the foregoing, I believe that the Library is a
public corporation. Since a public corporation is an "agency" for
purposes of the Freedom of Information Law, the Library in my view
is clearly required to comply and disclose its records in
accordance with that statute.

Second, even if it were not clear that the Library is a public
corporation, I point out that there is case law in which it has
been determined that certain entities, although characterized as
not-for-profit corporations, are agencies subject to the Freedom of
Information Law due to their statutory relationships or nexus with
government.

For instance, in 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;
id., 579).

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."

Another example involves local development corporations
created pursuant to §1411 of the Not-for-Profit Corporation Law.
The cited provision describes the purpose of local development
corporations and states in part that:

"it is hereby found, determined and declared
that in carrying out said purposes and in
exercising the powers conferred by paragraph
(b) such corporations will be performing an
essential governmental function."

In two judicial decisions dealing with the status of local
development corporations, both concluded that those corporations
are "agencies" subject to the Freedom of Information Law. In the
first, Legal Aid Society of Northern New York, Inc. v. Albany Local
Development Corporation (Supreme Court, Albany County, January 27,
1989), the Court found that "[t]o suggest that ALDC is not an
agency of the City of Albany is not realistic and the court does
not adopt such reasoning." Concurrently, the Court "adopt[ed] the
reasoning" offered in two opinions prepared by this office in which
it was advised that certain local development corporations were
subject to the Freedom of Information Law. Further, in a recent
decision rendered by the Appellate Division, Fourth Department,
Matter of Buffalo News, Inc. v. Buffalo Enterprise Development
Corporation [578 NYS 2d 945, 173 AD 2d 43 (1991)], the Court found
that the Corporation was subject to the Freedom of Information Law,
stating that the Corporation:

"was specifically organized by the City of
Buffalo pursuant to the Not-for-Profit
Corporation Law [sections] 102(a)(5), 201(b),
402 and 1411, 'to advance the objectives of
[the City's] Department of Community
Development *** [and] *** to facilitate
partnership with the private sector in
strengthening Buffalo's downtown, its
neighborhoods, and its business and
industries'. Occupying rent-free offices in
City Hall, it 'acts as the City's agent to
invest public funds in economic development
activities' and 'to lessen the burdens of
government and to act in the public interest'.
It is required to disclose its annual budget
publicly, subject that budget to a public
hearing and file its audited financial report
with the City annually because, as a City
development agency, it 'acts for or on behalf
of the City in expending money granted to the
City of [itself] for development purposes."

In its conclusion, the Court found that "because the BEDC acts as
a governmental agency, it is subject to the disclosure requirements
of FOIL."

It is noted that in the agreement between the City of New York
and the Library entered into 1907 following the incorporation of
the Library by the State Legislature earlier that year, there are
various provisions that indicate a nexus between the City and the
Library and which suggest that the Library is essentially an
extension of City government. Paragraph three of the agreement
states in part that the City:

"will appropriate and pay for the maintenance
and support of said The Queens Borough Public
Library such sums as may be requisite for the
proper maintenance of the libraries under its
jurisdiction, such amount to constitute a city
charge and to provide for in the annual Budget
and tax levy of said City."

Paragraph five of the agreement states in part that:

"...the title to the library property in said
Borough of Queens heretofore vested in the
City as part of said free library system,
shall remain in said City, and all books and
other personal property hereafter purchased by
said The Queens Borough Public Library out of
moneys appropriated by said City for the
maintenance of said free library system, shall
be and remain the property of the City..."

Moreover, as indicated earlier, the Board of Trustees of the
Library, by statute, consists of ex officio City officials and
others, all of whom are appointed by the Mayor. As such, the Mayor
and New York City government maintain significant control and have
significant legal relationships with respect to the Library.

In view of the case law pertaining to somewhat analogous
relationships between governmental entities and the not-for-profit
entities described in those decisions, again, I believe that the
Library would constitute an agency subject to the Freedom of
Information Law even if its corporate status were not entirely
clear. However, for reasons expressed previously, I believe that
the Library is a public corporation and that, as such, it is an
"agency" required to comply with the Freedom of Information Law.

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 §87(2)(a) through (i) of the Law. From my
perspective, the kinds of records sought by Newsday's reporter
would be accessible. The grounds for denial are limited, and none
would apparently be applicable with regard to records containing
"financial information pertaining to the Queens Library in
general," or with regard to financial information relating to
members of the Board of Trustees acting in their capacities as
Board members.

Lastly, I point out that the companion statute to the Freedom
of Information Law, the Open Meetings Law (Public Officers Law,
Article 7), is applicable to meetings of the Board of Trustees.
While I believe that the governing body of a public corporation
would constitute a "public body" as defined by S102(2) of the Open
Meetings Law, in addition to that statute, §260-a of the Education
Law states that:

"Every meeting, including a special district
meeting, of a board of trustees of a public
library system, cooperative library system,
public library or free association library,
including every committee meeting and
subcommittee meeting of any such board of
trustees in cities having a population of one
million or more, shall be open to the general
public. Such meetings shall be held in
conformity with and in pursuance to the
provisions of article seven of the public
officers law. Provided, however, and
notwithstanding the provisions of subdivision
one of section ninety-nine of the public
officers law, public notice of the time and
place of a meeting scheduled at least two
weeks prior thereto shall be given to the
public and news media at least one week prior
to such meeting."

Again, since Article 7 of the Public Officers Law is the Open
Meetings Law, meetings of boards of trustees of various libraries
must be conducted in accordance with that statute. Please note
that the Open Meetings Law has been renumbered since the enactment
of §260-a of the Education Law and that §104, formerly §99, deals
with notice of meetings.

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:pb

cc: Constance B. Cooke, Executive Director
Curtis R. Simmons, Reporter