January 12, 1996



Mr. George A. Mayes
11 Gold Street
Warrensburg, NY 12885

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.

Dear Mr. Mayes:

I have received your letter of December 30 and the materials attached to it.

According to the correspondence, the Town of Warrensburg and a group of doctors known as the Hudson Headwaters Health Network (HHHN) entered into an agreement in 1992, and you have raised two questions in relation to the terms of the agreement.

One element of the agreement requires the establishment of a Health Advisory Committee by the Town Board. According to the agreement, the primary function of the Advisory Committee involves providing "the Town Board with recommendations regarding the scope and delivery of health services to the community." You have asked whether the Advisory Committee is subject to the Open Meetings Law.

In this regard, I offer the following comments.

As you are aware, the Open Meetings Law pertains to meetings of public bodies, and §102(2) of that statute defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

Judicial decisions indicate generally that advisory bodies, other than committees consisting solely of members of public bodies, having no power to take final action fall outside the scope of the Open Meetings Law. As stated in those decisions: "it has long been held that the mere giving of advice, even about governmental matters is not itself a governmental function" [Goodson-Todman Enterprises, Ltd. v. Town Board of Milan, 542 NYS 2d 373, 374, 151 AD 2d 642 (1989); Poughkeepsie Newspapers v. Mayor's Intergovernmental Task Force, 145 AD 2d 65, 67 (1989); see also New York Public Interest Research Group v. Governor's Advisory Commission, 507 NYS 2d 798, aff'd with no opinion, 135 AD 2d 1149, motion for leave to appeal denied, 71 NY 2d 964 (1988)]. Therefore, it appears that the Health Advisory Committee would not constitute a public body subject to the Open Meetings Law.

You have also asked whether reports prepared by the HHHN that must be provided to the Advisory Committee constitute Town records subject to the Freedom of Information Law. Section IV.a. of the agreement states in relevant part that:

"HHHN shall provide the Advisory Committee with a quarterly report as to the financial condition of the program including an operating statement indicating all operating revenues and expenditures for the quarter."

In my opinion, those reports are Town records that fall within the coverage of the Freedom of Information Law. That statute pertains to agency records, and §86(4) defines the term "record" broadly to mean:

"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, the state's highest court, has construed the language quoted above expansively on several occasions and most recently dealt with whether "material received by a corporation providing services for a State university and kept on behalf of the university constitute a 'record' that is presumptively discoverable under FOIL" (see Encore College Bookstores, Inc. v. Auxiliary Service Corporation of the State University of New York at Farmingdale, ___ NY 2d ___, December 27, 1995). In its consideration of the issue, the Court determined that the State University clearly is an "agency" that is required to comply with the Freedom of Information Law [see definition of "agency", §86(3)]. In this instance, it is equally clear that the Town is an agency for purposes of that statute. Further, the Court described the relationship between the Auxiliary Service Corporation (ASC) and the University and concluded that records maintained by the ASC for the University were subject to the Freedom of Information Law. Specifically, the Court wrote as follows:

"In order to fulfill its educational mission, SUNY must provide certain auxiliary services to its campus community. As set forth unequivocally in ASC's bylaws, the function of ASC is to supply these essential services--including the campus bookstore--for SUNY. ASC's acts in discharging this delegated duty, then, are performed on SUNY's behalf.

"Because ASC receives a copy of the booklist compiled by its subcontractor, Barnes & Noble, to ensure that the campus bookstore is adequately maintained, it does so for the benefit of SUNY, a governmental agency. In other words, the booklist information is 'kept' or 'held' by ASC 'for an agency' (Public Officers Law § 86[4]). Thus, the information falls within the unambiguous definition of the term 'records' under FOIL.

"SUNY's contention that disclosure turns solely on whether the requested information is in the physical possession of the agency ignores the plain language of FOIL defining 'records' as information kept or held 'by, with or for an agency' (Public Officers Law § 86[4]}. Where, as here, the literal language of a statute is precise and unambiguous, that language is determinative (Roth v Michelson, 55 NY2d 278; see also, Capital Newspapers v Whalen, 69 NY2d 246, 248 [giving words their natural and most obvious meaning in interpreting 'records' under FOIL]."

From my perspective, the situation that you described is somewhat analogous to that before the Court. In this instance, the Advisory Committee receives records from a party to an agreement, HHHN, for the benefit of the Town. As such, the reports are kept by the Advisory Committee for an agency, the Town of Warrensburg. Therefore, I believe that they are Town records.

The foregoing is not intended to suggest that the reports must of necessity be disclosed in their entirety. Rather, it is my view that the reports constitute records that fall within the scope of rights of access conferred by the Freedom of Information Law. In brief, 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 (i) of the Law.

I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.



Robert J. Freeman
Executive Director


cc: Town Board