July 11, 1997
Mr. Richard L. Nash
4 John Smith
Avenue Auburn, NY 13021
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. Nash:
As you are aware, I have received your letter of June 15 concerning certain practices of the Auburn Industrial Development Agency (the "IDA") and the Auburn Local Development Corporation (the "LDC").
Your first area of inquiry pertains to the IDA, and you have questioned the propriety of an executive session held "to discuss a pilot for a local shop."
While the nature of that discussion is not entirely clear, I note that the Open Meetings Law is based on a presumption of openness. Stated differently, all meetings of public bodies, such as the IDA, must be conducted in public, unless there is a basis for entry into executive session. Paragraphs (a) through (h) of §105(1) of the Open Meetings Law specify and limit the topics that may appropriately be considered in an executive session.
One of the grounds for entry into executive session that is frequently pertinent to the work of an industrial development agency is §105(1)(f). That provision permits a public body to conduct an executive session to discuss:
"the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation..."
Based on the foregoing, to the extent that the discussion involved the financial or credit history of a particular person or corporation, for example, I believe that §105(1)(f) would have justified the holding of an executive session.
Secondly, you wrote that when you attend a meeting of the IDA, you "receive no material and the discussion is largely about facts on a certain page that are not yet available to any one but members." You wrote that you have requested the records during meetings, but that they have been available only after the meetings.
Here I direct your attention to the Freedom of Information Law. Although an agency may respond to an oral request made under the Freedom of Information Law, §89(3) of that statute authorizes an agency to require that a request be made in writing. Further, while a public body may choose to furnish information or records during a meeting, it may require that a request be made in accordance with its rules and regulations adopted under the Freedom of Information Law.
By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires the governing body of a public corporation, i.e., a board of trustees, to adopt rules and regulations consistent with the Law and the Committee's regulations.
Section 1401.2 of the regulations, provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so.
(b) The records access officer is responsible for assuring that agency personnel...
(3) Upon locating the records, take one of the following actions:
(i) make records promptly available for inspection; or (ii) deny access to the records in whole or in part and explain in writing the reasons therefor..."
In view of the foregoing, the records access officer has the "duty of coordinating agency response" to requests and assuring that agency personnel act appropriately in response to requests. Section 1401.4 of the regulations entitled "Hours for public inspection" states that:
"(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business.
(b) In agencies which do not have daily regular business hours, a written procedure shall be established by which a person may arrange an appointment to inspect and copy records. Such procedure shall include the name, position, address and phone number of the party to be contacted for the purpose of making an appointment."
In sum, although the IDA could disclose records during a meeting, I do not believe that it would be obliged to do so. Rather, the IDA could, in my opinion, require that an applicant request the records in writing during the time set forth in its rules and regulations. Alternatively, you could request records under the Freedom of Information Law prior to a meeting.
I note that the Committee on Open Government has recognized that members of the public have at times been frustrated at meetings due to their inability to gain access to records discussed at meetings. Consequently, for several years the Committee has recommended legislation on the subject. If enacted, the legislation would amend §103 of the Open Meetings Law as follows:
"A record which is available pursuant to article six of this chapter, including any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be presented and discussed by a public body at an open meeting shall be made available for review to the public upon request at lease seventy-two hours prior to such meeting, or as soon as practicable. Copies of such record shall be made available for a reasonable fee as determined in the same manner as provided in article six of this chapter."
Lastly, you asked whether meetings of the LDC must be conducted in public. You indicated that the LDC is a not-for-profit corporation consisting of nine members, and that among the nine, five permanent members are the Mayor, the City Manager, the Corporation Counsel, the Comptroller, and the Chairman of the IDA. In my opinion, in view of the membership of the LDC's governing body, it is likely subject to both the Open Meetings Law and the Freedom of Information Law.
While I know of no judicial decision concerning the status of a local development corporation under the Open Meetings Law, the State's highest court has considered the matter under the Freedom of Information Law.
The Freedom of Information Law pertains to agencies, 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" [§86(3)].
Specific reference is found in §1411 of the Not-for-Profit Corporation Law to local development corporations. The cited provision describes the purpose of those corporations and states in part that:
"it is hereby found, determined and declared that in carrying out said purposes and in exercising the powers conferred by paragraph (b) such corporations will be performing an essential governmental function."
Therefore, due to its status as a not-for-profit corporation, it is not clear in every instance that a local development corporation is a governmental entity; however, it is clear that such a corporation performs a governmental function.
Relevant to your inquiry is a decision rendered by the Court of Appeals in which it was held that a particular not-for-profit local development corporation is an "agency" required to comply with the Freedom of Information Law [Buffalo News v. Buffalo Enterprise Development Corporation, 84 NY 2d 488 (1994)]. In so holding, the Court found that:
"The BEDC seeks to squeeze itself out of that broad multipurposed definition by relying principally on Federal precedents interpreting FOIL's counterpart, the Freedom of Information Act (5 U.S.C. §552). The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an 'agency' only if there is substantial governmental control over its daily operations...The Buffalo News counters by arguing that the City of Buffalo is 'inextricably involved in the core planning and execution of the agency's [BEDC] program'; thus the BEDC is a 'governmental entity' performing a governmental function of the City of Buffalo, within the statutory definition.
"The BEDC's purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo to attract investment and stimulate growth in Buffalo's downtown and neighborhoods. As a city development agency, it is required to publicly disclose its annual budget. The budget is subject to a public hearing and is submitted with its annual audited financial statements to the City of Buffalo for review. Moreover, the BEDC describes itself in its financial reports and public brochure as an 'agent' of the City of Buffalo. In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant's arguments" (id., 492-493).
Based on the foregoing, if the relationship between the LDC and the City of Auburn is similar to that of the BEDC and the City of Buffalo, the LDC would constitute an "agency" required to comply with the Freedom of Information Law.
Because the five City officials serve as permanent members of the LDC, it is clear that the City of Auburn exercises substantial control over the LDC. If that is so, I believe that the LDC would constitute an "agency" required to comply with the Freedom of Information Law.
If the LDC is an agency that falls within the scope of the Freedom of Information Law, I believe that its board would also constitute a "public body" for purposes of the Open Meetings Law. Section 102(2) defines that phrase 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."
By breaking the definition into its components, I believe that each condition necessary to a finding that the board of the LDC is a "public body" may be met. It is an entity for which a quorum is required pursuant to the provisions of the Not-for-Profit Corporation Law. It consists of more than two members. Further, based upon the language of §1411(a) of the Not-for-Profit Corporation Law, which was quoted in part earlier, and the degree of governmental control exercised by the City of Auburn, I believe that it conducts public business and performs a governmental function for a public corporation, in this instance, the City of Auburn.
I hope that I have been of assistance.
Robert J. Freeman
cc: City of Auburn Industrial Development Agency
Auburn Local Development Agency