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OML-AO-3490

July 16, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

I have received your letter of June 22, as well as the materials attached to it. You have sought an advisory opinion concerning the status of the Mohawk & Hudson River Humane Society ("the Society") under the Freedom of Information and Open Meetings Laws.

In this regard, the latter is applicable to meetings of public bodies, and §102 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."

Based on the foregoing, the Open Meetings Law pertains to entities that conduct public business and perform a governmental function for the state or for a municipality. Having reviewed the Society's by-laws, I do not believe that its Board of Directors would constitute a public body.

It has been advised and determined in some instances that the boards of certain not-for-profit corporations are subject to the Open Meetings Law. Those instances have involved situations in which the government has substantial control over a corporation. For example, in a situation in which government officials designate the members of the board of directors of a not-for-profit corporation, I believe that the board such a corporation would constitute a "public body" despite its corporate status. In consideration of the by-laws of the Society, it appears that there is little if any government control, and if that is so, the meetings of its Board would, in my view, fall beyond the requirements of the Open Meetings Law.

Somewhat similarly, the Freedom of Information Law is applicable to agency records, and §86(3) 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, as a general matter, the Freedom of Information Law pertains to entities of state and local government in New York. I do not believe that the Society could be characterized as an agency or that it has a responsibility to comply with the Freedom of Information Law.

Nevertheless, in consideration of its relationships with governmental entities, it is possible that some of the Society's records may fall within the scope of the Freedom of Information Law. For purposes of that statute, the term "record" is defined to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based upon the language quoted above, documents need not be in the physical possession of an agency to constitute agency records; so long as they are produced, kept or filed for an agency, the courts have held they constitute "agency records", even if they are maintained apart from an agency's premises.

For instance, it has been found that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney's fees were paid by applicants before the agency. The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Perhaps most significant is a decision rendered by the Court of Appeals, the state's highest court, in which it was found that materials received by a corporation providing services pursuant to a contract for a branch of the State University that were kept on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

Insofar as records maintained by the Society are "kept, held, filed, produced or reproduced...for an agency", such as a municipality, I believe that they would constitute "agency records" that fall within the scope of the Freedom of Information Law. This is not to suggest that a relationship of that nature would transform the Society into an agency required to comply with the Freedom of Information Law, but rather that some of the records that it possesses may be maintained for an agency, and that those records would fall within the coverage of that statute.

In circumstances in which entities or persons outside of government maintain records for a government agency, it has been advised that requests for those records be made to the records access officer of that agency. Pursuant to regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401), the records access officer has the duty of coordinating an agency's response to requests for records. In the context of the situation that you described, if the Society maintains records for a municipality, a request should be made to the municipality's records access officer. To comply with the Freedom of Information Law and the implementing regulations, the records access officer would either direct the Society to disclose the municipality's records in a manner consistent with law, or acquire the records the from the Society in order that he or she could review the records for the purpose of determining rights of access.

To reiterate, the responsibility to give effect to or comply with the Freedom of Information Law would not involve the Society, but rather the government agency whose records are maintained by the Society on its behalf.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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