October 30, 2014
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information 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 Rockville Centre Housing Authority and the Rockville Centre I Housing Development Fund Company. Specifically, you questioned whether FOIL would require disclosure of the partnership agreement between Rockville Housing Associates and the Rockville Centre I Housing Development Fund Company, tax returns, and/or contracts or agreements “signed by the sole general partner of Rockville Housing Associates.”
In this regard, please note that your request repeatedly refers to the federal Freedom of Information Act. In our view, because that statute applies only to records of federal agencies, it is inapplicable in the context of your requests. The Freedom of Information Law (FOIL) pertains to records maintained by state and local government agencies in New York, and it has been held that municipal housing authorities are subject to FOIL. Section §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.”
Section 3(2) of the Public Housing Law states that municipal housing authorities are public corporations. Because the definition of "agency" includes authorities and public corporations, we believe that a public housing authority is clearly an "agency" required to comply with the Freedom of Information Law, and it has been so held (Westchester Rockland Newspapers, Inc. v. Fischer, 101 AD 2d 840 ).
We further note that §86(4) of the Freedom of Information Law 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.”
The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term “record” involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a “nongovernmental” activity, the Court rejected the claim of a “governmental versus nongovernmental dichotomy” (see Westchester Rockland Newspapers, supra) and found that the documents constituted “records” subject to rights of access granted by the Law. Moreover, the Court determined that:
“The statutory definition of ‘record’ makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons” (id.).
In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not “records,” thereby rejecting a claim that the documents “were the private property of the intervenors, voluntarily put in the respondents’ ‘custody’ for convenience under a promise of confidentiality” (Washington Post v. Insurance Department, 61 NY 2d 557, 564 ). Once again, the Court relied upon the definition of “record” and reiterated that the purpose for which a document was prepared or the function to which it relates are irrelevant. Moreover, the decision indicated that “When the plain language of the statute is precise and unambiguous, it is determinative” (id. at 565).
Additionally, in another decision rendered by the Court of Appeals, the Court focused on an agency claim that it could “engage in unilateral prescreening of those documents which it deems to be outside of the scope of FOIL” and found that such activity “would be inconsistent with the process set forth in the statute” [Capital Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court determined that:
“...the procedure permitting an unreviewable prescreening of documents - which respondents urge us to engraft on the statute - could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate request. There would be no way to prevent a custodian of records from removing a public record from FOIL’s reach by simply labeling it ‘purely private.’ Such a construction, which would thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected” (id., 254).
Based upon the decisions cited above, all of which were rendered by the State’s highest court, written materials in the possession of the Housing Authority constitute “records” subject to rights conferred by the Freedom of Information Law. Whether such records are required to be made available in whole or in part, depends on the content of such records.
We note the provision of law that you included with your request, namely Chapter 383 of the Laws of 2006, signed July 25, 2006, which authorizes the Rockville Centre Housing Authority to sell or lease all or part of its housing project (Rockville Centre Apartments) and states in relevant part as follows:
“The entity that controls the operation of the project or acts as the general partner following transfer of the project shall be a not-for-profit entity established under article 11 of the private housing finance law, wholly owned by the Rockville Centre housing authority, provided, however, that the directors, members or other governing body of such entity shall be composed of the chairperson of the authority and the duly appointed and elected commissioners of such authority.” (Laws of 2006, Chapter 383, Section 3[h]).
Shortly thereafter, and again, based on documents submitted with your request, a contract was executed between the State of New York acting through the Commissioner of the Division of Housing and Community Renewal, the Village of Rockville Centre and the Rockville Centre Housing Authority to create a “Limited Partnership”, “formed by a not-for-profit housing development fund company created, sponsored, and controlled by the Authority. The not-for-profit housing development fund company shall serve as the sole general partner of the Limited Partnership.” (Contract for Loan and Subsidy Amendment (Rockville Centre Apartments, signed October, 2007, Section 3[a]).
Assuming that the above information is accurate, and the Limited Partnership is a corporate entity wholly owned by the Rockville Centre Housing Authority, and the Rockville Centre Housing Authority Development Fund Company is the sole general partner of the Limited Partnership, then, in my opinion, these entities are also “agencies” subject to the Freedom of Information Law. As suggested earlier, included in definition of “agency” within the Freedom of Information Law is any “other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof.” In our opinion, an entity that is wholly owned by and controlled by an agency, created for the purpose of performing the governmental duties of the agency, is also an “agency” as defined by law, and therefore subject to all of the requirements of the Freedom of Information Law.
In the event that our assumptions are not accurate, the records maintained by the Limited Partnership and the Rockville Centre Housing Authority Development Fund Company would be maintained “by and on behalf of” Rockville Centre Housing Authority and therefore subject to disclosure pursuant to a FOIL request to the Authority.
Turning now to the nature of the records that you have requested and the likelihood that they would be required to be made available upon request, we note that 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 (l) of the Law.
The request was for a copy of “the Partnership Agreement, all Federal and State Tax Returns filed from 2007 to the present, and the Resolution establishing OMNI Housing Development LLC as an affiliate (or development partner) of the L.P.”
In our opinion, there would be no basis in law to deny access to either a partnership agreement or a resolution.
We hope that you find this helpful.
Camille S. Jobin-Davis