June 23, 1994
Mr. Bernard J. Blum
Friends of Rockaway Inc.
67-11 Beach Channel Drive
Averne, NY 11692
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, unless otherwise indicated.
Dear Mr. Blum:
I have received your letter of in which you requested a "ruling on roll call minutes" concerning the Education Subcommittee of the Citizens Advisory Committee of the New York/New Jersey Harbor Estuary Program (HEP).
In this regard, the Committee on Open Government is authorized to provide advice pertaining to the New York Freedom of Information and Open Meetings Laws. The Committee is not empowered to issue a "ruling" or otherwise enforce those statutes. Nevertheless, based on a review of the materials attached to your letter, and a discussion with a representative of the Hudson River Foundation, I offer the following comments.
It is my understanding that HEP is funded through the federal Environmental Protection Agency and that participants in HEP and its committees and subcommittees may be representatives of federal agencies, New York and New Jersey state and municipal agencies, and interested persons who are not government employees. HEP, as described to me, is a public/private partnership that operates through cooperative agreements designed to enhance and encourage public participation.
Notwithstanding the goals of the Program, neither New York nor New Jersey has the ability to impose its laws beyond its borders. As you may be aware, §86(3) of the Freedom of Information Law 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 a case involving the application of the New York Freedom of Information Law to the Waterfront Commission of New York Harbor, which is a bi-state agency, it was held in Metro-ILA Pension Fund v. Waterfront Commission of New York Harbor (Supreme Court, New York County, NYLJ, December 16, 1986) that "[a]n interstate agency is created by interstate compact, and New York may not impose its preferences with respect to freedom of information on the other party to the compact." Therefore, it was held that "the Waterfront Commission is not an 'agency' subject to New York's Freedom of Information Law."
While §87(3)(a) of the Freedom of Information Law requires that an agency maintain voting records indicating how each member cast his or her vote, because the committees created by the HEP are not agencies, the New York Freedom of Information Law and its requirement concerning the record of votes would not, in my opinion, be applicable.
Similarly, the Open Meetings Law, which includes requirements concerning minutes of meetings, pertains to meetings of public bodies. In my view, there are three reasons for advising that the Open Meetings Law is inapplicable.
First, as in the case of the Freedom of Information Law, the state's Open Meetings Law is valid only in New York; it does not apply beyond the borders of this state.
Second, in a case involving the status of a committee operating within the State University that was designated pursuant to federal law, the Court of Appeals found that the powers of the committee "derive solely from Federal Law...and for that reason alone", it was concluded that the entity in question did not constitute a public body subject to the Open Meetings Law [American Society for the Prevention of Cruelty to Animals v. Board of Trustees of the State University of New York, 79 NY 2d 927, 929 (1992)].
Lastly, judicial 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)]. In sum, for the reasons discussed earlier, it appears that the requirements of the Freedom of Information Law and the Open Meetings Law to which you alluded do not apply to committees or subcommittees formed under HEP.
I hope that I have been of some assistance.
Robert J. Freeman