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February 18, 1994

 

 

Ms. Jody Adams
8100 Indian Neck Lane
Peconic, NY 11958

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. Adams:

I have received your letter of January 19 in which you
requested an advisory opinion concerning the status of a particular
entity under the Open Meetings and Freedom of Information Laws.

Your question involves a committee that was designated to deal
with "the estate/trust field", and you provided some description
regarding its membership.

In order to acquire additional information on the subject, I
have contacted Professor Kenneth F. Joyce, Executive Director of
the Law Revision Commission, as well as a representative of
Assemblywoman Helene Weinstein. In brief, I was informed that in
conjunction with recommendations offered by the judiciary
committees of the Senate and the Assembly, a joint resolution was
approved in May of 1993 to designate a group to study provisions of
the Estates, Powers and Trusts Law regarding spousal rights. Three
members each are designated by the Senate, the Assembly, the Bar
Association and the Surrogate's Court Association. I have been
informed that the committee is purely advisory in nature.

In view of the committee's functions and the judicial
interpretation of the Open Meetings Law, it appears that it would
not constitute a public body required to comply with that statute.
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 bodies,
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)]. Most
analogous to the issue that you have raised is the New York Public
Interest Research Group case, in which it was held that an advisory
commission designated by the Governor by means of an executive
order was not subject to the Open Meetings Law.

The records of or prepared by the Committee are, in my view,
subject to the Freedom of Information Law, particularly those
provisions pertaining to the State Legislature. Section 86(2) of
the statute defines "state legislature" to mean:

"...the legislature of the state of New York,
including any committee, subcommittee, joint
committee, select committee, or commission
thereof."

Based on the foregoing, I believe that the entity in question would
be subject to §88 of the Freedom of Information Law, which deals
specifically with the State Legislature. I point out that
subdivision (2) of §88 specifies the kind of records that must be
disclosed by the State Legislature.

Enclosed is a copy of the Freedom of Information Law for your
review.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

Enc.

cc: Kenneth F. Joyce
Hon. Helene B. Weinstein