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http://www.dos.state.ny.us/coog/ftext/f7852.txt



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http://www.dos.state.ny.us/coog/fl.html
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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