August 18, 1993



Mr. Anthony S. Viola
#38206-053 (1B2)
United States Penitentiary
P.O. Box 33
Terre Haute, IN 47808-0033

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. Viola:

As you are aware, your letter addressed to Attorney General
Abrams on July 26 has been forwarded to the Committee on Open
Government. The Committee, a unit of the Department of State, is
authorized to advise with respect to the Freedom of Information

Your inquiry concerns the status of the Waterfront Commission
of New York Harbor under the Freedom of Information Law and its
denial of access to records. In this regard, the Freedom of
Information Law applies to agency records, and §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

Since the entity in question is a bi-state agency, I do not believe
that the Commission is subject to the Freedom of Information Law.
As stated in Metro-ILA Pension Fund v. Waterfront Commission of New
York Harbor (Supreme Court, New York County, NYLJ, December 16,
1986), "[a]n interstate agency is created by interstate compact,
and New York may not impose its preferences with respect to freedom
of information on the other party to the compact." Therefore, it
was held that "the Waterfront Commission is not an 'agency' subject
to New York's Freedom of Information Law."
I hope that the foregoing serves to enhance your understanding
of the matter and that I have been of assistance.



Robert J. Freeman
Executive Director