March 5, 2010

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, except as other indicated.


            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Stillwater Area Community Services Center, Inc.  At issue is whether the Center is an "agency" subject to the Freedom of Information Law, and you asked whether the Town may compel the Center to disclose a recent audit and other financial information to the Town.

            According to its Certificate of Incorporation, the Center is a not-for-profit corporation organized "to formulate and carry out informational, civic, historical, charitable and public plans and programs for the purpose of benefitting the citizens of the Stillwater Area as defined by the boundaries of the Counties of Saratoga, Rensselaer and Washington, encompassing the Village, Town and School District of Stillwater... .  To exercise, promote and protect the privileges of the residents of the Stillwater Area (as previously defined); to foster a healthy interest in the civic affairs of the community; to develop good citizenship; and to inquire into civic abuses and to see reformation thereof."  The Center leases a public building from the Town, and receives a large percentage of its annual revenue from the Town.  The members of the Board of Directors are directly elected by the membership of the Center, and as you stated, AThe Town Board exercises no authority over operation and administration of the Center, and is considered only an 'interested party'."  In this regard, we offer the following comments.

            First, the Freedom of Information Law 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."

            Second, 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 judicial 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.

            Volunteer fire companies, for example, although often not-for-profit companies, were found to be agencies due, in part, to their performance of what has historically been deemed “an essential governmental function”  [Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)]. 

            In Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court of Appeals found that a not-for-profit corporation, based on its relationship to an agency, was itself an agency subject to the Freedom of Information Law. The decision indicates that:

"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 (see, e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). 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...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).

            Subsequently it was held that a community college foundation associated with a CUNY institution was subject to the Freedom of Information Law, despite its status as a not-for-profit corporation. In so holding, it was stated that:

"At issue is whether the Kingsborough Community College Foundation, Inc (hereinafter 'Foundation') comes within the definition of an 'agency' as defined in Public Officers Law §86(3) and whether the Foundation's fund collection and expenditure records are 'records' within the meaning and contemplation of Public Officers Law §86(4).

"The Foundation is a not-for-profit corporation that was formed to 'promote interest in and support of the college in the local community and among students, faculty and alumni of the college' (Respondent's Verified Answer at paragraph 17). These purposes are further amplified in the statement of 'principal objectives' in the Foundation's Certificate of Incorporation:

'1 To promote and encourage among members of the local and college community and alumni or interest in and support of Kingsborough Community College and the various educational, cultural and social activities conducted by it and serve as a medium for encouraging fuller understanding of the aims and functions of the college'.

"Furthermore, the Board of Trustees of the City University, by resolution, authorized the formation of the Foundation. The activities of the Foundation, enumerated in the Verified Petition at paragraph 11, amply demonstrate that the Foundation is providing services that are exclusively in the college's interest and essentially in the name of the College. Indeed, the Foundation would not exist but for its relationship with the College" (Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988).

            Unlike the situation here, the foundation in Eisenberg would not exist but for its relationship to the City University.  Here, the Center was organized to provide "informational, civic, historical, charitable and public plans and programs" to a geographical area that includes the Town.  According to its website, the Center's facilities, including two gymnasiums, a community room, a kitchen and a drama/presentation stage, can be rented on a limited basis; the Center is host to various community organizations and operates a community pre-school, a school-aged child care program, and an elder care program.

            There are significant distinctions between the Center, the foundation in Eisenberg, and the Enterprise Development Corporation in Buffalo News.  The Center's organizational purposes and the services that it provides are not necessarily designed to fulfill a governmental function.  And, although the Town's contributions are significant, its role is limited to providing financial support.  It is also clear in our view that the functions performed by the Center may be significant, but not essential, as in the case of a volunteer fire company fighting fires and enhancing public safety.  Accordingly, it is our opinion that the Center is not an "agency" subject to the Freedom of Information Law, and would not be required to disclose financial records pursuant to that Law. 

            On behalf of the Committee on Open Government, we hope that this is helpful.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director