August 4, 1993
Ms. Loretta Prisco
Parents Action Committee for
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 July 30 in which you requested an advisory opinion on behalf of the Parents Action Committee for Education (PACE).
According to your letter:
"In January 1993, the Superintendent of District 31 convened a Committee of community members to review the NYC HIV/AIDS Curriculum. Members of this committee included parents, Director of the 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. A Special Assistant to the Superintendent chaired the several meetings held. All meetings were held in the District Office and closed to the public."
You wrote that when the Task Force had completed its work, minutes of meetings and a summary report were submitted to the District. PACE requested a copy of the report on July 24, and as of the date of your letter to this office, it had received no response. However, you added that the Superintendent has informed the news media that the report is not "public".
In conjunction with the foregoing, you expressed the belief that the meetings of the Task Force should have been open to the public pursuant to the Education Law and that the report should be disclosed to the public. You have sought my views on the matter.
In this regard, I offer the following comments.
First, with respect to meetings of the Task Force, I point out that 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 ad hoc entities, 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)]. Therefore, it appears that the Task Force would not have been subject to the Open Meetings Law.
Second, while I am not an expert on the subject, even when an entity is not subject to the Open Meetings Law, if it holds its meetings on school property, §414 of the Education Law may require that its meetings be held open to the public. That provision enables a board of education to authorize school property to be used for certain purposes, such as:
"For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be non-exclusive and shall be open to the general public" [§414(1)(c)].
If the Task Force met on school property to engage in a "civic" function or a matter "pertaining to the welfare of the community", it appears that §414 of the Education Law would have required that its meetings be held open to the public. Again, since I lack expertise regarding the Education Law, it is suggested that you might contact the Office of Counsel at the State Education Department to obtain additional guidance on the subject. That office can be reached at (518) 474-6400.
Third, with respect to the report, I direct your attention to the Freedom of Information Law. As you may be aware, that statute pertains to agency records, and §86(4) defines the term "record" broadly 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 on the foregoing, when a document or report is maintained by or produced for an agency, it constitutes a "record" subject to rights conferred by the Freedom of Information Law.
In §86(3) of the Freedom of Information Law, "agency" is defined 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."
As such, a school district or school board would clearly constitute an "agency". However, if the Task Force is not a public body because, based on judicial decisions, it does not perform a governmental function, it would not be an agency, for it would not perform that function. If that is so, the only ground for denial in the Freedom of Information Law of likely relevance would in my opinion be inapplicable. In brief, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. The provision to which I alluded, §87(2)(g), permits an agency to withhold "inter-agency or intra-agency materials", depending upon their contents. From my perspective, since the Task Force is apparently not an agency, the report transmitted to the Superintendent would not consist of either inter-agency or intra-agency material. If that is so, §87(2)(g) could not be asserted as a basis for denial. Moreover, in view of the information that you provided, none of the other grounds for denial would be applicable.
Lastly, although I am unaware of whether or when a response to your request may be been given, I point out that the Freedom of Information Law provides direction concerning the time and manner in which an agency must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:
"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: District Superintendent