April 8, 1997
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.
I have received your letter of March 21 in which you sought and advisory opinion.
Attached to your letter is a copy of an appeal addressed to the Supervisor of the Town of Saugerties, James Griffis, who also serves as chairman of the Saugerties Festival Development Corporation (FDC). You wrote that the Board of Trustees of the FDC consists of the same persons as the members of the Town Board, and that it is your understanding that the FDC was formed by the Town Board and Woodstock Ventures, Inc. in 1994 "to handle the town's portion of the proceeds from the Woodstock '94 music festival that was held in Saugerties in August, 1994".
Your letter was apparently precipitated by the following series of facts;
"Around Christmas 1996, Griffis announced at a town board meeting that the FDC was in receipt of $900,000-plus from Woodstock Ventures and Polygram, the festival producers. Supposedly, that money could be used for any purpose the town chose. Unfortunately, all deliberations about how the money will be used have been carried on behind closed doors, with the public and a least one FDC (town board) member left out of the loop entirely.
"Now the town attorney says the town is negotiating to buy property for a new town hall. It appears that by the authority of some members of the FDC, the FDC intends to go ahead and build a town hall without any public input and present it to the town like a present. It seems to some town residents that the FDC is a thinly disguised shadow government designed to conduct town business while totally circumventing the Open Meetings Law."
From my perspective, the records of the FDC are subject to the Freedom of Information Law, and its meetings must be conducted in accordance with the Open Meetings Law. In this regard, I offer the following comments.
First, as you may be aware, the 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 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." Based on the foregoing, an "agency" generally is an entity of state or local government. Typically, a private entity or a not-for-profit corporation would not constitute an agency, for it would not be a governmental entity.
However, there is precedent indicating that in some instances a not-for-profit corporation may indeed be an "agency" required to comply with the Freedom of Information Law. In Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case involving access to records relating to a lottery conducted by a volunteer fire company, the Court of Appeals found that volunteer fire companies, despite their status as not-for-profit corporations, are "agencies" subject to the Freedom of Information Law. In so holding, the Court stated that:
"We begin by rejecting respondent's contention that, in applying the Freedom of Information Law, a distinction is to be made between a volunteer organization on which a local government relies for performance of an essential public service, as is true of the fire department here, and on the other hand, an organic arm of government, when that is the channel through which such services are delivered. Key is the Legislature's own unmistakably broad declaration that, '[a]s state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible' (emphasis added; Public Officers Law, §84).
For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objections cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in "(id. at 579].
In the same decision, the Court noted that:
"...not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id., 581).
The point made in the final sentence of the passage quoted above appears to be especially relevant, for, as I will suggest later, there may be "considerable crossover" in the activities certain persons in the performance of their duties for the Town government and the FDC.
More recently, in Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court of Appeals found again that a not-for-profit corporation, based on its relationship to an agency, was itself an agency subject to the Freedom of Information Law. The decision indicates that:
"The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an 'agency' only if there is substantial governmental control over its daily operations (see, e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). The Buffalo News counters by arguing that the City of Buffalo is 'inextricably involved in the core planning and execution of the agency's [BEDC] program'; thus, the BEDC is a 'governmental entity' performing a governmental function for the City of Buffalo, within the statutory definition.
"The BEDC's purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo...In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant's arguments," (id., 492-493).
Based on the foregoing, if the relationship between the FDC and the Town of Saugerties is similar to that of the BEDC and the City of Buffalo, the FDC would constitute an "agency" required to comply with the Freedom of Information Law.
Because the Supervisor serves as the Chairman of the FDC and the members of the Town Board and the FDC Board are one and the same, it is clear that the Town of Saugerties exercises substantial control over the FDC. If that is so, I believe that the FDC constitutes an "agency" required to comply with the Freedom of Information Law. In brief, that statute 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.
If the FDC is an agency that falls within the scope of the Freedom of Information Law, I believe that its board would constitute a "public body" for purposes of the Open Meetings Law. Section 102(2) defines that phrase 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."
By breaking the definition into its components, I believe that each condition necessary to a finding that the board of FDC is a "public body" may be met. It is an entity for which a quorum is required pursuant to the provisions of the Not-for-Profit Corporation Law. It consists of more than two members. In view of its membership the degree of governmental control exercised by the Town, I believe that it conducts public business and performs a governmental function for a public corporation, in this instance, the Town of Saugerties.
Like the Freedom of Information Law, the Open Meetings Law is based on a presumption of openness. Meetings of public bodies must be conducted open to the public, except to the extent that an executive session may be conducted in accordance with the provisions of paragraphs (a) through (h) of §105(1) of that statute.
In an effort to enhance compliance with and understanding of open government laws, copies of this opinion will be forwarded to Mr. Griffis and the Town Board.
I hope that I have been of some assistance.
Robert J. Freeman
cc: James Griffis