January 3, 1997




Mr. O. Shelly
87-84 165 St. - Apt. 110
Jamaica, NY 11432-3541

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. Shelly:

I have received your letter of November 17, which reached this office on December 5. Please accept my apologies for the delay in response.

You have asked whether the "Special Funds Conservation Committee" is subject to the Freedom of Information Law. You indicated that the entity in question is affiliated with the New York Compensation Rating Board and "is headed by an individual who is appointed by the Chairman of the Workers' Compensation Board." In this regard, having reviewed the statutes that you cited and others, I contacted the Workers' Compensation Board on your behalf to attempt to acquire additional information on the subject. I note that there is no reference in any provision of law to the Special Funds Conservation Committee, and I was informed that the Committee is largely independent of government.

Pursuant to §25-a(5) of the Workers' Compensation Law, the Chairman of the Workers' Compensation Board is required to appoint an individual as representative of a fund. However, when insurance carriers collectively designate an attorney, the cited provision specifies that the Chairman is required to appoint that person. In that event, which I was told is the case currently, the Chairman of the Workers' Compensation Board has no discretion in terms of the selection, and the appointment is pro forma. Consequently, the relationship between the Workers' Compensation Board and the entity in question and the degree of control on the part of the Board are not substantive in nature. In short, based upon my understanding of the matter, I believe that the Committee in question would not constitute an "agency" subject to the Freedom of Information Law, for it is not a governmental entity.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director