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January 7, 2014

FOIL-AO-19099
OML-AO-5387

 

Dear

I have received your letter, which pertains to an opinion prepared by a legal intern, Andrew Howard, and you asked initially that we “provide the legal authority for a non-lawyer to issue such advisory opinions.”  In this regard, both the Freedom of Information Law (FOIL), §89(1), and the Open Meetings Law (OML), §109, refer to the ability of the Committee on Open Government to render advisory opinions.  The capacity to do so was conferred upon staff of the Committee by resolution more than thirty years ago.  I point out that there is nothing in either statute specifying that advisory opinions must be rendered by attorneys.  Further, I review every opinion sent by a legal intern.

It is your view, based on the holding in Hayes v. Chestertown Volunteer Fire Company, Inc. [93 AD3d 1117 (2010)] that a volunteer fire company’s meetings are not subject to the Open Meetings Law, and that minutes of those meetings are not subject to the Freedom of Information Law.  You contend that there is a distinction between a fire department and a fire company, citing the Appellate Division in Westchester-Rockland Newspapers v. Kimball, 72 AD2d 706 (1979), aff’d, 50 NY2d 575(1980)].

From my perspective, there is no distinction in the application of FOIL to fire departments and fire companies.  In the Court of Appeals decision in Westchester News, the Court referred to requests to the “chief of the volunteer fire department of the Village of Ossining and the heads of its fire companies for access to the records of a public lottery sponsored by the department” (id., 578).  The Court then began its analysis:

“…by rejecting respondents’ 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” (id., 579).

I believe that a “volunteer organization” in the context of the decision includes a volunteer fire company; an “organic arm of government” would include a town, a village or a fire district, for example, all of which are public corporations.

  That conclusion was reached in an unreported decision, S.W. Pitts Hose Campany v. Capital Newspapers (Supreme Court, Albany County, January 25, 1988).  The decision referenced Westchester News and determined that:

“The language of the state’s highest court is clear.  It would be mere speculation to surmise that the Court of Appeals did not mean for that statement [the statement quoted above] to apply to all volunteer fire department, regardless of their organizational structure…

Even assuming, arguendo that Westchester News is not controlling in this matter, this Court still expressly determines that volunteer fire companies serving fire protection districts are governmental entities as that term is used under the FOIL…..

This Court recognizes the long, distinguished history of volunteer fire companies in New York State, and the vital services they provide to many municipalities.  But not to be ignored is their existence inextricably linked to, dependent on, and under the control of the municipalities for which they provide an essential public service.”

  You wrote that meetings of the entity at issue, and presumably records that relate to discussions, “frequently relate to internal affairs and the social, recreational and benevolent activities that the Fire Company undertakes in furtherance of its charitable purpose.”  That may be so.  Nevertheless, when an entity is subject to FOIL, the nature of the records that it maintains, all of which fall within the scope of rights conferred by that statute, is irrelevant.  As stated by the Court of Appeals in Westchester News:

“The statutory definition of ‘record’ makes nothing turn on the purpose for which a document was produced or the function to which it relates…The present case provides its own illustration.  If we were to assume that a lottery and fire fighting were generically separate and distinct activities, at what point, if at all, do we divorce the impact of the fact that the lottery is sponsored by the fire department from its success in soliciting subscriptions from the public?  How often does the taxpayer-lottery participant view his purchase as his ‘tax’ for the voluntary public service of safeguarding his or her home from fire?  And what of the effect on confidence in government when this fund-raising effort, though seemingly an extracurricular event, ran afoul of our penal law?” (supra, 581).

  In the decision that you cited, Hayes, the Appellate Division reached the same conclusion, stating that “We agree with petitioners that, to the extent Supreme Court’s FOIL determination differentiated between records concerning public or ‘firematic,” and private functions of CVFC, this was error”, and in fact, the CVFC, a volunteer fire company, conceded that it is an agency required to give effect to FOIL.

  In consideration of the Hayes’ Court’s reliance on Westchester News and several other decisions of the Court of Appeals, and assuming that the decision in that case applied to volunteer fire companies, which we believe to be so, it has never been understood here how the Hayes Court could have determined that the governing body of a volunteer fire company is not a public body subject to the OML.  In our view, each of the conditions necessary to find that such a body constitutes a “public body” as defined in §102(2) of the OML is present.  Its board consists of more than two members; it can conduct its business only pursuant to quorum requirements imposed by the not-for-profit corporation law; and most importantly, based on the precedents cited above, it conducts public business and performs a governmental function.

  We view the holding in Hayes to be inconsistent with those precedents and something of an aberration.  Further, your suggestion that there is a distinction between a fire department and a fire company is, in our opinion, contrary to the direction provided by the Court of Appeals and other judicial guidance.

  While we respect your views, we respectfully disagree.

 

Sincerely,

Robert J. Freeman
Executive Director