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October 22, 1993

 

 

Mr. Donald A. Davis
Secretary
Deer Crossing Homeowners Association, Inc.
Old State Road
Fishkill, NY 12524

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. Davis:

I have received your letter addressed to the Committee on Open
Government.

You wrote that the Deer Crossing Homeowners Association, Inc.,
"is a not for profit, type A Corporation as defined in subparagraph
(a) of Section 102 of the Not-for-Profit Corporation Law." You
have asked whether the Association is "required to conform to the
requirements of the Freedom of Information Law in regard to [y]our
meeting records, contracts and other records."

In this regard, I offer the following comments.

The Freedom of Information Law, as well as the Open Meetings
Law, applies to governmental entities. Specifically, 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."

Since the organization you serve is not a "governmental entity", it
is not in my opinion an "agency", and rights conferred by the
Freedom of Information Law would not extend to the Association. As
such, although you may choose to disclose records, you are not
required to do so by the Freedom of Information Law.

Similarly, the Open Meetings Law is applicable to meetings of
public bodies. Section 102(2) of that law defines the phrase
"public body" to include:

"...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."

Again, based upon my understanding of the organization, it would
not constitute a public body, for it does not perform a
governmental function. Therefore, meetings of the Association and
its Board would not be governed by the Open Meetings Law and the
Board could, in its discretion, choose to conduct public or private
meetings.

I hope the foregoing serves to clarify the matter. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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