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http://www.dos.state.ny.us/coog/ftext/f7852.txt
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August 9, 1993
Mr. Christopher J. Nolan
Corporate Counsel
Newsday
235 Pinelawn Road
Melville, N.Y. 11747-4250
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 Mr. Nolan:
As you are aware, I have received your letter of
August 2 in which you requested an advisory opinion
concerning the status of the Queens Borough Public
Library ("the Library") under the
Freedom of Information Law.
By way of background, you wrote that the issue has
arisen in conjunction with a Newsday reporter's
efforts to obtain financial information pertaining to
the Library in general, and its Board of Trustees in
particular.
You added than in an oral denial of the reporter's
request, he was informed that the Library is a
"private non-profit corporation which simply
contracts with the City of New York to provide
free public libraries to the residents of Queens,"
and that, therefore, it is not a government agency
falling within the coverage of the
Freedom of Information Law.
Enclosed with your letter are copies of various
materials describing the history of the Library,
including legislation enacted in 1907 and later
amended in 1913.
The legislation of 1907 "incorporates" the
"Queens Borough Public Library," and significantly,
in my opinion, states in Section 1 that the Library
constitutes "a body corporate and politic."
Section 3 states in part that the Library's
Board of Trustees
"shall have absolute control of the City of New York
for the maintenance of libraries conducted,
or to be conducted in the Borough of Queens..."
The amendment to the act of incorporation enacted in
1913 states that the Mayor, the Comptroller and the
President of the Board of Aldermen shall be ex officio
members of the Board of Trustees and that the
"trustees shall hereafter be chosen and vacancies
occurring in such office filled by appointment by the
Mayor of the City of New York."
In this regard, I offer the following comments.
First, the Freedom of Information Law is
applicable to agency records, and s86(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."
It is noted that the definition makes specific
reference to public corporations and any other
governmental entity performing a governmental or
proprietary function for a municipality.
In my view, by constituting the Library as
"a body politic and corporate" in the
Act of Incorporation enacted by the State Legislature,
the Legislature created a public corporation.
I point out that the primary meaning of "politic"
according to an ordinary dictionary definition of that
term is "political", and that "political" is defined
to mean
"of or relating to government, a government, or the
conduct of government"
(see Webster's Seventh New Collegiate Dictionary."
Similarly, Black's Law Dictionary defines the phrase
"political corporation" to mean a
"public or municipal corporation; one created for
political purposes, and having for its object the
administration of governmental powers of a
subordinate or local nature.
Based upon the foregoing, I believe that the
Library is a public corporation.
Since a public corporation is an "agency" for purposes
of the Freedom of Information Law, the Library in my
view is clearly required to comply and disclose its
records in accordance with that statute.
Second, even if it were not clear that the Library
is a public corporation, I point out that there is
case law in which it has been determined that certain
entities, although characterized as not-for-profit
corporations, are agencies subject to the
Freedom of Information Law due to their statutory
relationships or nexus with government.
For instance, in
Westchester-Rockland Newspapers v. Kimball
[50 NYS 2d 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, s84; id., 579).
More recently, another decision confirmed in an
expansive manner that volunteer fire companies are
required to comply with the Freedom of Information
Law.
That decision,
S.W. Pitts Hose Company et al. v. Capital Newspapers
(Supreme Court, Albany County, January 25, 1988),
dealt with the issue in terms of government control
over volunteer fire companies.
In its analysis, the Court states that:
"Section 1402 of the Not-for-Profit Corporation
Law is directly applicable to the plaintiffs
and pertains to how volunteer fire companies
are organized.
Section 1402(e) provides:
'...a fire corporation, hereafter
incorporated under this section
shall be under the control of the
city, village, fire district or town
authorities having by law, control
over the prevention or
extinguishment of fires therein.
Such authorities may adopt rules and
regulations for the government and
control of such corporations.'
"These fire companies are formed by consent
of the Colonie Town Board.
The Town has control over the membership of
the companies, as well as many other
aspects of their structure, organization
and operation (section 1402).
The plaintiffs' contention that their
relationship with the Town of Colonie is
solely contractual is a
mischaracterization.
The municipality clearly has, by law,
control over these volunteer organizations
which reprovide a public function.
"It should be further noted that the
Legislature, in enacting FOIL, intended
that it apply in the broadest possible
terms.
'...[I]t is incumbent upon the state and
its localities to extend public
accountability wherever and whenever
feasible'
(Public Officers Law, section 84).
"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 that their
existence is inextricably linked to,
dependent on, and under the control of the
municipalities for which they provide an
essential public service."
Another example involves local development
corporations created pursuant to
s1411 of the Not-for-Profit Corporation Law.
The cited provision describes the purpose of local
development 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."
In two judicial decisions dealing with the status
of local development corporations, both concluded that
those corporations are "agencies" subject to the
Freedom of Information Law.
In the first,
Legal Aid Society of Northern New York, Inc. v.
Albany Local Development Corporation
(Supreme Court, Albany County, January 27, 1989), the
Court found that "[t]o suggest that ALDC is not an
agency of the City of Albany is not realistic and the
court does not adopt such reasoning."
Concurrently, the Court "adopt[ed] the reasoning"
offered in two opinions prepared by this office in
which it was advised that certain local development
corporations were subject to the
Freedom of Information Law.
Further, in a recent decision rendered by the
Appellate Division, Fourth Department, Matter of
Buffalo News, Inc. v. Buffalo Enterprise Development
Corporation [578 NYS 2d 945, 173 AD 2d 43 (1991)],
the Court found that the Corporation was subject to
the Freedom of Information Law, stating that the
Corporation:
"was specifically organized by the City of
Buffalo pursuant to the Not-for-Profit
Corporation Law
[sections] 102(a)(5), 201(b), 402 and 1411,
'to advance the objectives of [the City's]
Department of Community Development
*** [and] *** to facilitate partnership with
the private sector in strengthening Buffalo's
downtown, its neighborhoods, and its business
and industries'.
Occupying rent-free offices in City Hall, it
'acts as the City's agent to invest public
funds in economic development activities' and
'to lessen the burdens of government and to act
in the public interest'.
It is required to disclose its annual budget
publicly, subject that budget to a public
hearing and file its audited financial report
with the City annually because, as a City
development agency, it
'acts for or on behalf of the City in expending
money granted to the City of [itself] for
development purposes."
In its conclusion, the Court found that
"because the BEDC acts as a governmental agency, it is
subject to the disclosure requirements of FOIL."
It is noted that in the agreement between the
City of New York and the Library entered into 1907
following the incorporation of the Library by the
State Legislature earlier that year, there are various
provisions that indicate a nexus between the City and
the Library and which suggest that the Library is
essentially an extension of City government.
Paragraph three of the agreement
states in part that the City:
"will appropriate and pay for the maintenance
and support of said The Queens Borough Public
Library such sums as may be requisite for the
proper maintenance of the libraries under its
jurisdiction, such amount to constitute a city
charge and to provide for in the annual Budget
and tax levy of said City."
Paragraph five of the agreement states in part that:
"...the title to the library property in said
Borough of Queens heretofore vested in the
City as part of said free library system,
shall remain in said City, and all books and
other personal property hereafter purchased by
said The Queens Borough Public Library out of
moneys appropriated by said City for the
maintenance of said free library system, shall
be and remain the property of the City..."
Moreover, as indicated earlier, the
Board of Trustees of the Library, by statute, consists
of ex officio City officials and others, all of whom
are appointed by the Mayor.
As such, the Mayor and New York City government
maintain significant control and have significant
legal relationships with respect to the Library.
In view of the case law pertaining to somewhat
analogous relationships between governmental entities
and the not-for-profit entities described in those
decisions, again, I believe that the Library would
constitute an agency subject to the
Freedom of Information Law even if its corporate
status were not entirely clear.
However, for reasons expressed previously, I believe
that the Library is a public corporation and that, as
such, it is an "agency" required to comply with 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 s87(2)(a) through (i) of the Law.
From my perspective, the kinds of records sought by
Newsday's reporter would be accessible.
The grounds for denial are limited, and none would
apparently be applicable with regard to records
containing
"financial information pertaining to the Queens
Library in general,"
or with regard to financial information relating to
members of the Board of Trustees acting in their
capacities as Board members.
Lastly, I point out that the companion statute to
the Freedom of Information Law, the Open Meetings Law
(Public Officers Law, Article 7), is applicable to
meetings of the Board of Trustees.
While I believe that the governing body of a public
corporation would constitute a "public body" as
defined by S102(2) of the Open Meetings Law, in
addition to that statute,
s260-a of the Education Law states that:
"Every meeting, including a special district
meeting, of a board of trustees of a public
library system, cooperative library system,
public library or free association library,
including every committee meeting and
subcommittee meeting of any such board of
trustees in cities having a population of one
million or more, shall be open to the general
public.
Such meetings shall be held in conformity with
and in pursuance to the provisions of article
seven of the public officers law.
Provided, however, and notwithstanding the
provisions of subdivision one of section
ninety-nine of the public officers law, public
notice of the time and place of a meeting
scheduled at least two weeks prior thereto
shall be given to the public and news media at
least one week prior to such meeting."
Again, since Article 7 of the Public Officers Law is the Open
Meetings Law, meetings of boards of trustees of various libraries
must be conducted in accordance with that statute.
Please note that the Open Meetings Law has been
renumbered since the enactment of
s260-a of the Education Law and that
s104, formerly s99, deals with notice of meetings.
I hope that I have been of some assistance.
Should any further questions arise,
please feel free to contact me.
Sincerely,
Robert J. Freeman
Executive Director
RJF:pb
cc: Constance B. Cooke, Executive Director
Curtis R. Simmons, Reporter
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