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May 24, 1996

 

 

Ms. Eileen Herkes
P.O. Box 83
Nanuet, NY 10954

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 Ms. Herkes:

I have received your letter of April 30, which reached this office on May 9. Your inquiry concerns your right to gain access to records and attend meetings of the Economic Opportunity Commission of Rockland County, Inc.

In this regard, most not-for-profit corporations are not governmental in nature and, therefore, fall beyond the coverage of those statutes. If, however, the entity in question is a community action agency that functions in accordance with the Federal Economic Opportunity Act of 1964, I believe that it would be required to disclose many of its records and conduct its meetings, in great measure, open to the public.

The New York Freedom of Information Law pertains to agency records, and §86(3) of that statute defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office of 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, the Freedom of Information Law generally applies to records maintained by entities of state and local government. It is my understanding that community action agencies are not-for-profit corporations. Although it appears that they perform a governmental function, it is questionable whether they constitute "governmental entities" or, therefore, are agencies subject to the Freedom of Information Law.

The Open Meetings Law applies 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."

It is my understanding that community action agencies are created by means of the authority conferred by the Economic Opportunity Act of 1964. According to §201 of the Act, the general purposes of a community action agency are:

"to stimulate a better focusing of all available local, State, private and Federal resources upon the goal of enabling low-income families, and low-income individuals of all ages, in rural and urban areas to attain the skills, knowledge, and motivations and secure the opportunities needed for them to become fully self-sufficient..." [§201(a)]

"to provide for basic education, health care, vocational training, and employment opportunities in rural America to enable the poor living in rural areas to remain in such areas and become self-sufficient therein..." [§201(b)].

When community action agencies are designated, §211 indicates that they perform a governmental function for the state or for one or more public corporations. It is noted that a public corporation includes a county, city, town, village, or school district, for example. As such, by means of the designation as community action agencies, those agencies apparently perform their duties for the state or at least one public corporation.

Section 213 of the enabling legislation expresses an intent to enhance public participation as well as disclosure of information regarding the functions and duties of community action agencies. Specifically, subdivision (a) of §213 states in relevant part that:

"[E]ach community action agency shall establish or adopt rules to carry out this section, which shall include rules to assure full staff accountability in matters governed by law, regulations, or agency policy. Each community action agency shall also provide for reasonable public access to information, including but not limited to public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency or other agencies engaged in program activities or operations involving the use of authority or funds for which it is responsible..."

Again, while it is unclear that the Freedom of Information Law applies to records maintained by a community action agency, I believe that the federal legislation quoted above indicates an intent to ensure accountability to the public by providing "reasonable public access to books and records of the agency." The federal Law also evidences an intent to authorize scrutiny of the governing body of a community action agency, for it refers to "reasonable access to information, including but not limited to public hearings."

In short, whether the Freedom of Information and Open Meetings Laws clearly apply to the records and meetings of a community action agency is somewhat unclear, I believe that the language of the federal enabling legislation indicates an intent that a community action agency be accountable by offering reasonable public access to proceedings and records. It has been suggested that the provisions of those statutes serve as a guide with respect to disclosure to the public. For instance, records reflective of a community action agency's policies or finances should generally be available, while those identifiable to individuals who participate in programs based upon income eligibility requirements could justifiably be withheld based upon considerations of personal privacy. Similarly, meetings held to discuss matters of policy or budget should be open, while discussions focusing on specific individuals, particularly in relation to personal financial or employment information, might justifiably be conducted in executive session.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Board of Directors