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November 17, 2000

OML-AO-3234

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

I have received your letter of October 2, as well as related materials. You indicated that you represent the Canandaigua Recreation Development Corporation ("the Corporation"), which was the subject of an advisory opinion prepared on August 8 at the request of Mr. Harold Oliver. In brief, based on the information provided by Mr. Oliver, it was advised that the Corporation is subject to both the Freedom of Information and Open Meetings Laws. At that time, the information that I had indicated that the Board of the Directors consisted of ex officio City of Canandaigua officials and others designated by the City Council that would comprise a majority of the Board. For that reason, it was advised that the City had substantial control over the Corporation.

Since then, I have learned that the composition of the Board of Directors has been changed. As you aware, in its original certificate of incorporation, Article V stated that the Board of Directors must consist initially of eleven members, six of whom would be the City officials to whom reference was made above. I note that Article 7 entitled "Amendments" states that certain articles, including Article V, "shall not be subject to amendment." Notwithstanding the foregoing, less than a year after the approval of the certificate of incorporation, Article 5 was amended to provide that five members of the Board would be City officials. As such, it would appear that less than a majority of Board consists of City officials. I point out that City officials, based on the certificate of incorporation, could become a majority on the Board, for Article V provides that the Board's initial membership
shall be eleven, but that it may be reduced to nine. In that event, five of the nine members would be City officials.

Not being an expert in the Not-for-Profit Corporation Law, I cannot gauge the legality or
propriety of amending the terms of Article V in view of its original prohibition regarding a change in the composition of the Board. I would conjecture, however, that such an amendment would be unusual, and that it is equally unusual to create a corporation whose board of directors may shift from being somewhat independent of government to being under substantial governmental control. Despite the amendment to the certificate and the reduction of City officials on its Board, I believe that many of the Corporation's records would remain subject to the Freedom of Information Law even if the Corporation is not itself subject to that statute. Further, meetings of the Board arguably are subject to the Open Meetings Law.

Specific reference is found in §1411 of the Not-for-Profit Corporation Law to local
development corporations, such as the entity in question. The cited provision describes the purpose of those corporations and states in part that:

"it is hereby found, determined and declared that in carrying out said purposes and in exercising the powers conferred by paragraph (b) such corporations will be performing an essential governmental function."

Due to its status as a not-for-profit corporation, it is not clear in every instance that a local
development corporation is a governmental entity; however, it is clear that such a corporation performs a governmental function.

With respect to its status under the Open Meetings Law, that statute applies to 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."

By breaking the definition into its components, I believe that each condition necessary to a finding that the board of a local development corporation 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. Further, based upon the language of §1411(a) of the Not-for-Profit Corporation Law, which was quoted in part earlier, I believe that it conducts public business and performs a governmental function for a public corporation, in this instance, the City of Canandaigua.

With respect to access to records under the Freedom of Information Law, even if it may be
contended that the Corporation is not an "agency" subject to that statute, it is clear that several of the members of its Board serve due to their status as City officials, and I believe that any records that they prepare or receive in conjunction with their activities involving the Corporation would fall within the coverage of the Freedom of Information Law. That statute pertains to agency records, and §86(4) defines the term "record expansively 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, documentation prepared or received by City officials in conjunction with the performance of their duties with the Corporation would by kept or produced by or for an agency, the City of Canandaigua. Therefore, again, even if the Corporation is not directly subject to the Freedom of Information Law, and I am not suggesting that it is not subject to that statute, due to the participation of City officials and designees, many, if not all of its records would in my view fall within the coverage of the statute.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Harold Oliver
City Council