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 will confirm our opinion that a fire company, including the Atlantic Steamer Fire Company No. 1, Inc., is an “agency” subject to the Freedom of Information Law. That statute is applicable to agency records, and §86(3) 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.”
In consideration of the language quoted above, an agency generally is an entity of state or local government; however, 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 department, the Court of Appeals, the state’s highest court, found that volunteer fire departments, 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).
“True, the Legislature, in separately delineating the powers and duties of volunteer fire departments, for example, has nowhere included an obligation comparable to that spelled out in the Freedom of Information statute (see Village Law, art 10; see, also, 39 NY Jur, Municipal Corporations, §§560-588). But, absent a provision exempting volunteer fire departments from the reach of article 6-and there is none-we attach no significance to the fact that these or other particular agencies, regular or volunteer, are not expressly included. 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].
Moreover, although it was contended that documents concerning the lottery were not subject to the Freedom of Information Law because they did not pertain to the performance of the department’s fire fighting duties, the Court held that the documents constituted “records” subject to the Freedom of Information Law [see §86(4)].
Due to the determination that incorporated volunteer fire departments are subject to the Freedom of Information Law, in our opinion, records of an incorporated fire company, and therefore the Atlantic Steamer Fire Company No. 1., Inc. are also subject to rights of access.
We hope this is helpful.
Camille S. Jobin-Davis