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December 28, 1993

 

 

Ms. Loretta Prisco
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 November 27 and the materials
attached to it. Please accept my apologies for the delay in
response.

You referred to your correspondence of July 30 in which you
sought an advisory opinion concerning access to records prepared by
a Committee designated by the Superintendent of District 31 to
review and offer recommendations with respect to the New York City
HIV/AIDS curriculum. In brief, it was advised that the records in
question should be disclosed, for none of the grounds for denial in
the Freedom of Information Law could apparently have been cited to
deny access.

Following a denial of access to records and in response to
appeals to the Chancellor of the New York City Public Schools, an
attorney for Chancellor, Mr. Scott R. Edelman, upheld the denial.
In his first letter to you, the denial was based upon §87(2)(g) of
the Freedom of Information Law pertaining to inter-agency and
intra-agency materials. In the second, reliance upon §87(2)(g) was
reiterated, and your contention that meetings of the committee
should have been conducted in public pursuant to §414 of the
Education Law was rejected. He determined that the meetings held
by the committee "are not required to be open to the general
public".

While I cannot effectively comment concerning the application
of §414 of the Education Law, for that statute is beyond the
jurisdiction and expertise of this office, I offer the following
remarks regarding access to the records. In some instances, they
may be repetitive of comments offered in response to your letter of
July 30.

In brief, in my opinion, if the committee is not a public body
subject to the Open Meetings Law, and there appears to be agreement
on that issue, it is not an "agency" for purposes of the Freedom of
Information Law. Therefore, the records that it has prepared could
not in my opinion be characterized as inter-agency or intra-agency
materials that fall within the scope of §87(2)(g).

More specifically, in your letter of July 30, you wrote that
the committee in question "included parents, Director of 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". In addition, you indicated the meetings of the committee
were closed to the public. In response to that letter, I referred
to the definition of "public body" in the Open Meetings Law and to
judicial interpretations pertinent to the status of the committee.
To reiterate, §102(2) of the Open Meetings Law defines "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."

As stated previously, the court have generally held that
advisory ad hoc entities, other than committees consisting solely
of members of the public bodies, that have 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)]. Based upon those decision, the
committee designated by the Superintendent is not a public body,
for, according to the courts, it does not perform a governmental
function.

Second, I refer once again to the Freedom of Information Law,
which 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."

In view of the language quoted above, an "agency" is a governmental
entity performing a governmental function.

From my perspective, if the committee is not a public body
because it does not perform a governmental function, it cannot be
an agency, for it would not perform a governmental function. If
that is so, its report would not consist of inter-agency or intra-agency materials, and §87(2)(g) would not serve as a basis for
denial.

I am familiar with the decisions cited by Mr. Edelman in his
determination, Town of Oyster Bay v. Williams {134 AD 2d 267
(1987)] and Rothenberg v. City University of New York [594 NYS 2d
219 (1993)]. Both dealt with records prepared by agency employees
consisting of intra-agency materials that could, due to their
contents, be withheld. Those decisions have no bearing upon the
issue at hand, for the report in this instance was prepared by an
entity consisting of a representative cross-section of the
community, most of whom were not employed by an agency.

For the foregoing reasons, I do not believe that the work
product prepared by the committee could be characterized as inter-agency or intra-agency material that could be withheld under the
Freedom of Information Law.

In short, I do not believe that Mr. Edelman, the
Superintendent or the Chancellor can rely upon inconsistent
contentions in reaching a conclusion. If the Open Meetings Law
does not apply to the committee's meetings because it does not
perform a governmental function, to be consistent, it cannot be
argued that the same committee does perform a governmental function
and is an agency when analyzing rights of access to records it
prepared for the Superintendent. In view of the judicial
construction of the Open Meetings Law relating to the committee's
status under the Open Meetings Law, i.e., that it is not a public
body subject to that statute, the same reasoning would lead one to
conclude that the committee is not an agency for purposes of the
Freedom of Information Law. If its not an agency, it cannot
prepare inter-agency or intra-agency materials, and §87(20(g), the
sole basis for denial cited by Mr. Edelman, could not serve as a
basis for denial of access to the records sought.

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: Scott R. Edelman