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OML-AO-4016

August 5, 2005

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter and hope that you will accept my apologies for the delay in response.

You have requested an advisory opinion concerning whether or the extent to which the Open Meetings Law applies to "the Erie County Bar Association Aid to Indigent Prisoners Society, Inc. [hereafter ‘the Program’], commonly known as the Assigned Counsel Program." You wrote that:

"This organization is a private not-for-profit member corporation, whose sole member is the Bar Association of Erie County. It is governed by a Board of Directors which, pursuant to its bylaws, must have a quorum at its meetings in order to conduct business. Funding for the program is provided primarily by the County of Erie and the State of New York Its sole purpose is to provide legal counsel pursuant to the plan of the county and the Bar Association of Erie County in accordance with Article 18-B of the County Law.

"The County of Erie contracts with two not for profit organizations to provide legal representation pursuant to Article 18-B. One is The Legal Aid Bureau of Buffalo, which provides such representation only in Buffalo City Court, and which is also a not-for-profit corporation. The other is the Assigned Counsel Program, which provides representation in all local, County, and Supreme Courts in Erie County. Neither employees of the Assigned Counsel Program itself nor the attorneys who provide legal services through the Program are employees of the County of Erie. Consequently, none of these employees or attorneys receive government benefits, including participation in the state retirement system. The same is true of employees and attorneys of The Legal Aid Bureau."

Although questions have arisen in the past concerning rights of access to records conferred by the Freedom of Information Law in relation to assigned counsel or "Article 18-B" programs, your question involves a matter of first impression. In considering the status of the Board of Directors of the Program under the Open Meetings Law, it is useful in my view to refer to essentially the same issue as it has arisen under the Freedom of Information Law.

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."

As such, the Freedom of Information Law generally applies to records maintained by state and local government; it would not ordinarily apply to a private organization.

As you are aware, Article 18-B, encompasses §§722 to 722-f of the County Law. Under §722, the governing body of a county and the City Council in New York City are required to adopt plans for providing counsel to persons "who are financially unable to obtain counsel." Those plans may involve providing representation by a public defender, by a legal aid organization, through a bar association, or by means of a combination of the foregoing.

While I believe that the records of the governmental entity required to adopt a plan under Article 18-B are subject to the Freedom of Information Law, the records of an individual attorney or private organization performing services under Article 18-B may or may not be subject to the Freedom of Information Law, depending upon the nature of the plan. For instance, if a plan involves the services of a public defender, I believe that the records maintained by an office of public defender would fall within the scope of the Freedom of Information Law (see County Law, §716), for that office in my view would constitute an "agency" as defined in §86(3). However, if it involves services rendered by private attorneys or associations, those persons or entities would not in my view constitute agencies subject to the Freedom of Information Law.

The Erie County Bar Association and the Program are not, in my opinion, "agencies" subject to the Freedom of Information Law. However, if a bar association, for example, or other organization maintains records for a county, I believe that those records would constitute county records. The Freedom of Information Law pertains to all agency records, and §86(4) of that statute 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 upon the language quoted above, documents need not be in the physical possession of an agency to constitute agency records; so long as they are produced, kept or filed for an agency, the courts have held they constitute "agency records", even if they are maintained apart from an agency’s premises.

In a decision rendered by the Court of Appeals, it was found that materials received by a corporation providing services for a branch of the State University pursuant to a contract that were kept on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

In sum, insofar as records are maintained for the County, I believe that the County would be required to direct the custodian of the records to disclose them in accordance with the Freedom of Information Law, or obtain them in order to disclose them to the extent required by law.

The Open Meetings Law is applicable to public bodies, and §102(2) of that law 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."

Based on the foregoing, the Open Meetings Law generally applies to governmental bodies. However, in Smith v. City University of New York [92 NY2d 707 (1999)], the Court of Appeals held that a student government association carried out various governmental functions on behalf of CUNY and, therefore, that its governing body is subject to the Open Meetings Law. In its consideration of the matter, the Court found that:

"in determining whether the entity is a public body, various criteria or benchmarks are material. They include the authority under which the entity is created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies" (id., 713).

You wrote that two not-for-profit entities provide legal representation under the County’s Article 18-B program, one of which is the Legal Aid Bureau of Buffalo. If that entity is similar to other legal aid organizations, it performs numerous law related functions that are carried out in a variety of contexts. One element of those functions involves the 18-B program. In contrast, you wrote that the "sole purpose" of the Program "is to provide legal counsel pursuant to the plan of the county and the Bar Association of Erie County in accordance with Article 18-B..." If my understanding is accurate, the Program would not exist, but for its relationship with the County. Its umbrella organization, the Bar Association, performs a variety of functions, and it is my opinion that the Bar Association does not fall within the coverage of the Open Meetings Law. The only function of the Program, however, involves carrying out duties in accordance with Article 18-B pursuant to a contract with the County. That being so, because its only functions are carried out for the County, it appears that its Board of Directors constitutes a "public body" subject to the Open Meetings Law.

Further, by breaking the definition of "public body"into its components, it appears that each condition necessary to a finding that the Board of the Program 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 the degree of its nexus with the County, it appears to conduct public business and perform a governmental function for a governmental entity.

Notwithstanding the foregoing, as you inferred, even if the Board of Directors of the Program may be characterized as a public body, it is likely that significant aspects of its meetings may be conducted during executive sessions.

I hope that I have been of assistance. If you would like to discuss the matter, please feel free to contact me.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt