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
As you are aware, I have received your letter of April 5, as well as the material relating to it. I hope that you will accept my apologies for leaving the event New York City last week so quickly. A quick departure was necessary to be able to catch a train.
In brief, you have asked whether "Precinct Community Councils of the New York
City Police Department" (the Councils) are subject to the Open Meetings and Freedom of
According to regulations apparently promulgated by the New York City Police
Department, a Council consists of "a group of concerned individuals who are dedicated to the
improvement of relations between the police and the community." Any member of a
community at least 18 years of age may join a Council. Councils also sponsor programs and activities for the purpose of maintaining public interest in quality police services. Council
meetings are open to the public.
Based on the information that you provided, a Council, in my view, is not subject to the requirements 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
Based on the foregoing, a public body is, in my view, an entity required to conduct public
business by means of a quorum that performs a governmental function and carries out its
duties collectively, as a body.
Several judicial decisions indicate generally that advisory bodies, other than those
consisting of members of a governing body, that have 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 Newspaper 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)]. In one of the decisions, Poughkeepsie Newspaper, supra, the Court found that "[t]he unifying principle running through these decisions is that groups or entities that do not, in fact, exercise the power of the sovereign are not performing a governmental function, hence they are not 'public bod[ies] subject to the Open Meetings Law..."(id.).
It is my understanding that a Council does not have the power or authority to take
action on behalf of any government agency. If that is so, it does not perform a governmental
function and would not constitute a "public body" subject to the Open Meetings Law. Most
analogous to a Council, in my opinion, would be a PTA. PTA's exist to foster good
relationships among parents, teachers and schools. Despite its relationship with government,
a PTA is not part of the government, and the same would be so in the case of a Council.
For a similar reason, I do not believe that a Council would be subject to the Freedom
of Information Law. That statute pertains to agencies, and §86(3) defines the term "agency"
"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."
Since a Council is not a governmental entity performing a governmental function, I believe
that its records would fall beyond the coverage of the Freedom of Information Law.
I hope that the foregoing serves to clarify your understanding of the Open Meetings and Freedom of Information Laws and that I have been of assistance.
Robert J. Freeman