July 13, 2016
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 otherwise indicated.
We are in receipt of your request for an advisory opinion regarding the application of the Freedom of Information Law (FOIL) and Open Meetings Law (OML) to the Batavia Business Improvement District and its Board of Directors.
Upon receipt of your inquiry, our office re-examined the matter and it is our opinion that the Business Improvement District (BID) is subject to the Freedom of Information Law and the Board of the Directors for the Business Improvement District Management Association is subject to the Open Meetings Law.
By way of background, FOIL applies to agency records and §86(3) of FOIL 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.”
Section 66(1) of the General Construction Law defines “public corporation” to include:
“a municipal corporation, a district corporation, or a public benefit corporation.”
Section 66(3) of the General Construction Law defines “district corporation” to include:
“any territorial division of the state, other than a municipal corporation, heretofore or hereafter established by law which possesses the power to contract indebtedness and levy taxes or benefit assessments upon real estate or to require the levy of such taxes or assessments, whether or not such territorial division is expressly declared to be a body corporate and politic by the statute creating or authorizing the creation of such territorial division.”
The Batavia BID is a territorial division of the state, specifically a territorial division of the City of Batavia, formed by local law in accordance with Article 19-A of the General Municipal Law. The City of Batavia assesses a tax on benefited properties located within the district to finance the activities of the BID (“The expense and cost apportioned to benefited real property in accordance with the plan shall be a charge upon each benefited parcel of real property within the district.” §980-j of the GML). Further, §980-j(c) states that:
“[a]ny municipality which has established a district pursuant to this article, may, for the purpose of providing funds for making capital improvements within a district, issue and sell bonds or other municipal obligations as provided in the local finance law and other applicable laws and statutes. Principal and interest payments on these bonds or other municipal obligations may be made in whole or in part from the proceeds of charges imposed upon benefited real property within the district.”
In that the BID requires the levy of a tax or assessment on benefited properties, and the BID may contract indebtedness by the issue and sale of bonds, it is our opinion that BIDs are “district corporations,” which are included in the definition of “public corporation,” which is included in the definition of the term “agency” as defined in §86(3) of FOIL.
Your second question is whether the Board of Directors for the Batavia BID Management Association is a “public body” as defined by the OML. That statute defines "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." (§102(2) of the OML) Section 980-m of the GML sets forth the requirement that “[t]here shall be a district management association for each district established pursuant to the provisions of this article.”
Section 980-m also establishes requirements for the composition of the board of directors of the district management association. A quorum is required in order for the board of directors to conduct public business relating to the activities of the BID (a public corporation as defined in §66 of the General Construction Law). In our opinion, the board of directors for a BID management association is a “public body” as defined by the OML, and meetings of the board of directors must be held in compliance with the OML.
I hope that I have been of assistance.
Sincerely, Kristin O’Neill Assistant Director
cc: Batavia BID, Board of Directors