March 27, 1996



Mr. Denis E. Wilson
Executive Director
Fulmont Development Facility, Inc.
Montgomery County Annex Building
P.O. Box 308
Fonda, NY 12068

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, unless otherwise indicated.

Dear Mr. Wilson:

I have received your letter of March 11 and the materials attached to it. In your capacity as executive director of Fulmont Development Facility ("Fulmont"), you have asked whether, in my view, Fulmont is required to honor a request for records sought under the Freedom of Information Law by the Amsterdam Recorder.

At the time of our telephone conversation on the matter, it was preliminarily suggested that Fulmont is likely not required to comply with the Freedom of Information Law. However, having reviewed the materials that you forwarded, I learned that it is a community action agency that functions in accordance with the Federal Economic Opportunity Act of 1964. For that reason, I believe that Fulmont is required to disclose its records, with exceptions.

By way of background, the New York Freedom of Information Law pertains 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 of 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."

As such, the Freedom of Information Law generally applies to records maintained by entities of state and local government. It is my understanding that community action agencies are not-for-profit corporations. Although it appears that they perform a governmental function, it is questionable whether they constitute "governmental entities" or, therefore, are agencies subject to the Freedom of Information Law.

It is also my understanding that community action agencies are created by means of the authority conferred by the Economic Opportunity Act of 1964. According to §201 of the Act, the general purposes of a community action agency are:

"to stimulate a better focusing of all available local, State, private and Federal resources upon the goal of enabling low-income families, and low-income individuals of all ages, in rural and urban areas to attain the skills, knowledge, and motivations and secure the opportunities needed for them to become fully self-sufficient..." [§201(a)]

"to provide for basic education, health care, vocational training, and employment opportunities in rural America to enable the poor living in rural areas to remain in such areas and become self-sufficient therein..." [§201(b)].

When community action agencies are designated, §211 indicates that they perform a governmental function for the state or for one or more public corporations. It is noted that a public corporation includes a county, city, town, village, or school district, for example. As such, by means of the designation as community action agencies, those agencies apparently perform their duties for the state or at least one public corporation.

Section 213 of the enabling legislation expresses an intent to enhance public participation as well as disclosure of information regarding the functions and duties of community action agencies. Specifically, subdivision (a) of §213 states in relevant part that:

"[E]ach community action agency shall establish or adopt rules to carry out this section, which shall include rules to assure full staff accountability in matters governed by law, regulations, or agency policy. Each community action agency shall also provide for reasonable public access to information, including but not limited to public hearings at the request of appropriate community groups and reasonable public access to books and records of the agency or other agencies engaged in program activities or operations involving the use of authority or funds for which it is responsible..."

Again, while it is unclear that the Freedom of Information Law applies to records maintained by a community action agency, I believe that the federal legislation quoted above indicates an intent to ensure accountability to the public by providing "reasonable public access to books and records of the agency."

Whether the Freedom of Information Law applies or otherwise, I believe that it offers guidance concerning the disclosure of the information sought.

That statute, in brief, 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 section 87(2)(a) through (i) of the Law. It is noted that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the grounds for denial that follow. The phrase quoted in the preceding sentence in my opinion indicates that a single record might be accessible or deniable in whole or in part.

Of likely relevance under the circumstances in terms of the authority to withhold is §87(2)(b) of the Freedom of Information Law. That provision enables an agency to withhold records or portions of records the disclosure of which would result in an "unwarranted invasion of personal privacy." While I believe that the Freedom of Information Law is intended to ensure that government is accountable, the privacy provisions of the Law in my view enable government to prevent disclosures concerning the personal details of individuals' lives.

From my perspective, a disclosure that permits the public determine the general income level of a participant in a program based upon income eligibility would likely constitute an unwarranted invasion of personal privacy, for such a disclosure would indicate that a particular individual has an income or economic means below a certain level. In some circumstances, individuals might be embarrassed by such a disclosure. Further, the New York State Tax Law contains provisions that require the confidentiality of records reflective of the particulars of a person's income or payment of taxes (see e.g., section 697, Tax Law). As such, it would appear that the Legislature felt that disclosure of records concerning income would constitute an improper or "unwarranted" invasion of personal privacy.

Therefore, insofar as the records sought include the names, addresses or other identifying details pertaining to those receiving assistance based on an income eligibility requirement, I believe that those items may be withheld or deleted, as the case may be, from Fulmont's records (see e.g., Tri-State Publishing Co. v. City of Port Jervis, Community Development Agency, Supreme Court, Orange County, March 4, 1992).

In sum, although the application of the Freedom of Information Law may be questionable, due to the direction provided by the federal law quoted earlier, it is my view that records regarding the functions and operation of community action agencies must be disclosed. Concurrently, however, in a manner consistent with provisions of both the state Freedom of Information Law and the federal Freedom of Information Act, it would appear that Fulmont would have the ability to withhold records insofar as disclosure would constitute an unwarranted invasion of personal privacy.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Teresa Cuda