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May 3, 1996

 

 

Mr. Ray Beckerman
186-05 Wexford Terrace
Jamaica, NY 11432

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, unless otherwise indicated.

Dear Mr. Beckerman:

As you are aware, I have received your correspondence pertaining to the Fort Totten Redevelopment Authority (FTRA). Your inquiry involves the status of the FTRA under the Freedom of Information and Open Meetings Laws.

By way of background, the FTRA is a "local redevelopment authority" (LRA) that was created in conjunction with the Federal Base Closure Act. Section 2918(c) of Pub.L. 103-160 as amended by Pub.L. 103-337 states that:

"The term 'redevelopment authority', in the case of an installation to be closed under this part, means any entity (including an entity established by a State or local government) recognized by the Secretary of Defense as the entity responsible for developing the redevelopment plan with respect to the installation or for directing the implementation of such plan."

Further, the regulations promulgated pursuant to the statute defines the phrase "local redevelopment authority" to mean:

"Any authority or instrumentality established by state or local government and recognized by the Secretary of Defense, through the Office of Economic Adjustment, as the entity responsible for developing the redevelopment plan with respect to the installation or for directing implementation of the plan" 32 CFR 91.3(g).

It is noted that the use of the term "authority" in this context differs from its common meaning in New York State law. Under state law, an authority is typically a kind of public corporation that is created by an act of the State Legislature. There is no particular method of creating an LRA, and an LRA clearly is not a public corporation. Further, if there is no recognized LRA, the applicable military department is authorized to proceed under pertinent "property disposal and environmental laws and regulations" [32 CFR 91.7(d)(3)(i)]. Therefore, while there is no requirement that they must exist, LRA's are created locally in order to provide the community at the site of a base closing with an opportunity to have a voice regarding the use of the base.

It is also noted that there are two kinds of LRA's. One has the power to purchase or convey real property and is characterized as an "implementation" LRA. The other has the duty of representing a community and developing a plan that must be approved by the Department of Defense, as well as other federal agencies in some instances and is known as a "planning" LRA. I have been informed that the FTRA has been recognized by the Secretary of Defense as a planning LRA. As such, it does not have authority equivalent to an implementation LRA.

I was also informed that the FTRA was created by means of a memorandum of agreement signed by the Mayor of New York City and the Queens Borough President.

With respect to its status under the Open Meetings Law, based upon a decision rendered by the Court of Appeals, it appears that the FTRA is not subject to that statute. In a decision that dealt with a "laboratory animal use committee" (LAUC) that was required to be established pursuant to federal law and was instituted at the State University at Stony Brook, it was determined that the entity in question fell beyond the scope of the Open Meetings Law.

That statute pertains to meetings of public bodies, and §102(2) 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." Following its reference to the definition, the Court found that:

"It is thus evident that the Open Meetings Law excludes Federal bodies from its ambit.

"The LAUC's constituency, powers and functions derive solely from Federal law and regulations. Thus, even if it could be characterized as a governmental entity, it is at most a Federal body that is not covered under the Open Meetings Law" [ASPCA v. Board of Trustees of the State University of New York, 79 NY 2d 927, 929 (1992)].

As in this instance, the LAUC was created by an instrumentality of government in New York, and its members were selected by New York government officials. Although both the LAUC and the FTRA were created by the action of New York government officials, the existence of those entities "derive[s] solely from Federal law and regulations." Due to the similarity relative to the creation and basis for existence between the LAUC and the FTRA, again, it appears that the FTRA would not constitute a "public body" required to comply with the Open Meetings Law. Additionally, having discussed the matter with federal and other officials, I was informed that there is no provision of federal law that specifies that an LRA is required to conduct its meetings open to the public.

Notwithstanding the foregoing, I believe that records involving the activities of the FTRA generally fall within the coverage of the State's Freedom of Information Law. Further, having conferred with Michael Rogovin of the Office of the Queens Borough President, it appears that efforts have been made to ensure the disclosure of records pertinent to the FTRA by that office.

The Freedom of Information Law pertains to agency records, and due to the breadth of the definition of the term "record", the application of the Freedom of Information Law is more extensive than its counterpart, the Open Meetings Law. Section 86(4) of the Freedom of Information Law defines the term "record" 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."

The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the Law. In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared or the function to which it relates are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565).

Similarly, in a case involving documents maintained by a city relating to a deceased mayor, it was held that the documents constituted "records" that fall within the scope of the Freedom of Information Law, even though they might have pertained to the former mayor in a personal capacity or in his capacity as political party leader [see Capital Newspapers v. Whalen, 69 NY 2d 246 (1987)].

In sum, irrespective of the status of the LRA for purposes of the Open Meetings Law, any records maintained by the Office of the Borough President or any other New York City agency would in my view constitute "records" subject to rights of access conferred by the Freedom of Information Law. In addition, since the LRA was established by a memorandum of agreement signed by New York City officials, arguably any records of the LRA might be characterized as having been kept, held or produced for an agency [i.e., the City of New York].

The foregoing is not intended to suggest that all records must necessarily be disclosed, but rather that they are subject to rights of access. As a general matter, 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.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Michael Rogovin
Joyce Shepard
Nicole Doucette
Diane Demuth