January 11, 2013
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.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the New York State Public High School Athletic Association, and in particular, whether the Association is an “agency” subject to the Freedom of Information Law.
Attached, for your information, are submissions from counsel to the Suffolk County Public High School Athletic Association including copies of various documents related to the Association, and copies of two advisory opinions in which we advise that we believe the governing body of the Association is a “public body” subject to the Open Meetings Law (OML).
By way of background, the Association was formed as a not for profit corporation in 1977 “to provide a central association through which the public secondary schools of the State of New York in that geographic portion of the State of New York designated as ‘Section XI’ may cooperate so as to be responsible for governing inter-scholastic athletic activities for boys and girls in grades seven through twelve…through the following manner:
- To adopt, strengthen, interpret and enforce uniform eligibility rules and sports standards governing participation in inter-scholastic athletics in Section XI, at all levels as established in the Regulations of the Commissioner of Education Governing Athletics.
- To establish necessary principles and procedures for the conduct of inter-scholastic athletics in Section XI.
- To strengthen the work of the local schools and developing good sportsmanship and high ideals among contestants and teams in Section XI.
- To encourage all forms of appropriate inter-scholastic athletic activities for all boys and girls in grades seven through twelve as an integral part of the educational program of the member schools of Section XI.
- To plan for and conduct sectional and intersectional contests in conjunction with the other member sections of the New York State Public High School Athletic Association, Inc….”.
In short, the Association exists solely for the purpose of coordinating athletic events for public high school students in a particular geographic region in accordance with regulations of the Commissioner of Education.
Such regulations indicate that “it shall be the duty of trustees and board of education: (a) to conduct school extra class athletic activities…” (8 NYCRR 135.4[c]), and “[i]t shall be the duty of the trustees and boards of education to conduct… [i]nterschool athletic competition for pupils in senior high school grades 9, 10, 11 and 12. Inter-high school athletic competition shall be limited to competition between high school teams…” (8 NYCRR 135.4[c][ii][b]).
As set forth in the attached OML advisory opinions, and based on the Association’s constitution and bylaws, neither a student nor a school district has the ability to participate in interscholastic sports and thereby comply with the Commissioner’s regulations unless both the student athlete and the school district agree to abide by the Association’s rules. Unlike other associations in which membership is optional and in which students and districts may partake in various functions absent membership, in this instance, boards of education and the districts and students they serve cannot comply with the Commissioner’s regulations unless they agree to abide by the Association’s constitution and bylaws.
First, as you may be aware, 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."
While profit or not-for-profit corporations would not in most instances be subject to the Freedom of Information Law because they are not governmental entities, there are several determinations in which it was held that certain not-for-profit corporations, due to their functions and the nature of their relationship with government, are “agencies” that fall within the scope of the Freedom of Information Law.
In the first decision in which it was held that a not-for-profit corporation may indeed be an “agency” required to comply with the Freedom of Information Law, Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case involving access to records relating to a lottery conducted by a volunteer fire company, the Court of Appeals found that volunteer fire companies, despite their status as not-for-profit corporations, are "agencies" subject to the Freedom of Information Law. In so holding, the Court stated that:
"We begin by rejecting respondent's 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. Key is the Legislature's own unmistakably broad declaration that, '[a]s state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible' (emphasis added; Public Officers Law, §84).
“For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objections cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" (id. at 579].
It is noted that in Westchester-Rockland, the Court rejected the contention that a distinction must be made between a volunteer fire company, also a not-for-profit corporation, “on which a local government relies for the performance of an essential public service...and an organic arm of government” (id., 579). In our view, ensuring organized and standardized interscholastic athletics for public high school students is also “an essential public service” reflective of the performance of a governmental function.
Another decision rendered by the Court of Appeals involved an entity that, in my view, is analogous in some respects to the Association. Buffalo News v. Buffalo Enterprise Development Corporation [84 NY2d 488 (1994)] involved the status of a not-for-profit corporation, a local development corporation created under §1411 of the Not-for-Profit Corporation Law. In its finding that the entity (“the BEDC”) “channels funds into the community and enjoys many attributes of public entities” (id., 492) and holding that the BEDC is an “agency”, the Court highlighted and italicized the portion of the definition of that term that refers to any “governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof.” In the discussion of the matter, the decision states that:
“The BEDC seeks to squeeze itself out of that broad multipurposed definition by relying principally on Federal precedents in interpreting FOIL’s Federal counterpart, the Freedom of Information Act (5 U.S.C § 552). The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an ‘agency’ only if there is substantial governmental control over its daily operations...The Buffalo News counters by arguing that the City of Buffalo is ‘inextricably involved in the core planning and execution of the agency’s [BEDC] program’; thus, the BEDC is a ‘governmental entity’ performing a governmental function for the City of Buffalo, within the statutory definition.
“The BEDC’s purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo to attract investment and stimulate growth in buffalo’s downtown and neighborhoods. As a city development agency, it is required to publicly disclose its annual budget. The budget is subject to a public hearing and is submitted with its annual financial statements to the City of Buffalo for review. Moreover, the BEDC describes itself in its financial reports and public brochure as an ‘agent’ of the City of Buffalo. In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant’s arguments” (id., 492-493).
In a third decision involving a not-for-profit corporation, the “CDRC”, having an “intimate” relationship with an agency, it was found that:
“...the CRDC was admittedly formed for the purpose of financing the cost of and arranging for the construction and management of the Roseland Waterpark project. The bonds for the project were issued on behalf of the City and the City has pledged $395,000 to finance capital improvements associated with the park...
“Most importantly, the City has a potential interest in the property in that it maintains an option to purchase the property at any time while the bonds are outstanding and will ultimately take a fee title to the property financed by the bonds, including any additions thereto, upon payment of the bonds in full. Further, under the Certificate of Incorporation, title to any real or personal property of the corporation will pass to the City without consideration upon dissolution of the corporation. As in Matter of Buffalo News, supra, the CRDC’s intimate relationship with the City and the fact that the CRDC is performing its function in place of the City necessitates a finding that it constitutes an agency of the City of Canandaigua within the meaning of the Public Officers Law and therefore is subject to the requirements of the Freedom of Information Law...” (Canandaigua Messenger, Inc. V. Wharmby, Supreme Court, Ontario County, May 11, 2001).
The Appellate Division unanimously affirmed the findings of the Supreme Court regarding the foregoing [aff’d 739 NYS 2d 509, 292 AD2d 835 (2002)].
Although there are distinctions in the functions of the Association and BEDC and the other entities referenced above that were found to be “agencies”, there are, based on the direction offered by the courts, and particularly the Court of Appeals, a variety of similarities, which, in our view, would lead a court to conclude that the Association is an “agency” subject to the Freedom of Information Law. Those similarities are detailed in the materials that you provided, many of which describe the relationship between member school districts and the Association, and the examples offered earlier herein.
In short, as we understand the matter, the Association would not exist but for its relationship with school districts, and based on the terms of its agreements with its members and the functions that it carries out, again, we believe that it constitutes an “agency” obliged to give effect to the Freedom of Information Law.
Second, even if the Association is not an agency, many, if not all, of its records fall within the scope of the Freedom of Information Law. That statute defines the term “record”
"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."
In consideration of 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.
It has been found, for example, that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney’s fees were paid by applicants before the agency. The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).
Perhaps most significant is a decision rendered by the Court of Appeals in which it was found that materials maintained by a corporation providing services pursuant to a contract for a branch of the State University that were kept on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law. We 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)].
Insofar as records maintained by WAC are “kept, held, filed, produced or reproduced...for an agency”, such as the DEP, I believe that they would constitute “agency records” that fall within the scope of the Freedom of Information Law.
In consideration of the nature of the relationship between the Association and its member school districts, it appears that its records, perhaps with few exceptions, are maintained for school districts and, therefore, are subject to rights of access conferred by the Freedom of Information Law.
Lastly, with regard to the status of the Association’s governing body, we refer you to the attached OML advisory opinions, through which we advise that the governing body is a “public body” subject to the Open Meetings Law. For reasons discussed in those opinions, in our opinion the Association conducts public business and carries out a governmental function for other agencies, namely public school districts.We hope that this is helpful.
Camille S. Jobin-Davis
Copy to Kevin Seaman, Esq. w/advisory opinion enclosures