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OML-AO-4248

August 24, 2006

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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 in which you raised questions concerning the application of the Freedom of Information and Open Meetings Laws.

You wrote that the government of the town in which you reside is a member of a private organization, the local chamber of commerce ("the COC"). If the Town "has a paid membership...and these dues were paid using Town funds," you asked whether that would "entitle residents of the Town to be able to access any records related to the Town’s involvement" in the COC. You also asked whether "[i]f more than 3 Town board members attend a COC meeting, does this constitute a quorum?"

In this regard, I offer the following comments.

First, the Freedom of Information Law applies to agencies, and §86(3) 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 typically is an entity of state or local government, such as a town; not-for-profit and other corporate entities are generally not subject to the Freedom of Information Law. In my view, the COC clearly does constitute an agency and, therefore, is not required to comply with the Freedom of Information Law.

Second, and notwithstanding COC’s status under the Freedom of Information Law, records pertaining to it may nonetheless be available. That statute is applicable 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."

Due to the breadth of the definition, when records involving the COC or the Town’s relationship with the COC come into the possession of a Town official in his or her capacity as such, in my opinion, they constitute agency records that fall within the coverage of the Freedom of Information Law.

As a general matter, the Freedom of Information Law 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.

Next, the presence of three or more members of the Town Board at a COC meeting may or may not constitute a Town Board meeting, depending on the facts associated with their presence. The issue relates to the Open Meetings Law, which pertains to meetings of public bodies, and §102(1) of the Open Meetings Law defines the term "meeting" to mean "the official convening of a public body for the purpose of conducting public business". The definition of "meeting" has been broadly interpreted by the courts, and in a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD 2d 409, aff'd 45 NY 2d 947 (1978)].

Inherent in the definition and its judicial interpretation is the notion of intent. If there is an intent that a majority of a public body convene, collectively, as a body, for the purpose of conducting public business, such a gathering would, in my opinion, constitute a meeting subject to the requirements of the Open Meetings Law. However, if there is no intent that a majority of public body gather for purpose of conducting public business, as a body, but rather for the purpose of gaining education, or to listen to a speaker as part of an audience or group, I do not believe that the Open Meetings Law would be applicable.

Analogous questions have arisen in the past, and in some instances, the manner in which members of public bodies are situated suggests whether a meeting is being held. If a majority of the Town Board attending a COC meeting sits at a dais or table together in the front of the room and functions as the Board, I believe that it would be conducting a "meeting" that falls within the coverage of the Open Meetings Law. On the other hand, if Board members are merely attendees, and not functioning as a body, in my view, their presence would not constitute a "meeting." Similarly, if one Board member is sitting at one table, a second member sits at a different table, and a third is situated apart from the other two, the three Board members clearly would not be functioning as a body, and again, the Open Meetings Law in my opinion would not apply.

I hope that I have been of assistance.

RJF:tt