Tuesday, April 03, 2012

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates
Hayes v Chestertown Volunteer Fire Co., Inc., 2012 NY Slip Op 02367, Appellate Division, Third Department

The Chestertown Volunteer Fire Company, Inc. [CVFC] partially denying Christine A. Hayes’s Freedom of Information Law requests, contending that it was a private corporation not subject to the requirements of FOIL.

Ultimately Hayes initiated a CPLR Article 78 proceeding seeking to compel CVFC to comply with numerous FOIL requests and the Open Meetings Law, as well as an award of counsel fees and litigation costs.

Supreme Court held that the Open Meetings Law was not applicable to the meetings held by CVFC and ordered CVFC to submit the documents requested by Hayes to the court for an in camera review so that it could redact any records containing "non-firematic" information. Hayes appealed.

The Appellate Division, agreeing with Hayes, said that “to the extent Supreme Court's FOIL determination differentiated between records concerning public, or ‘firematic,’ and private functions of CVFC, this was error.”  Although Supreme Court found, and CVFC conceded, that CVFC is an "agency" subject to the requirements of FOIL, it was incorrect in determining that “because CVFC engages in both governmental and private activities, the records of its nongovernmental functions are not subject to FOIL's disclosure requirements.”

Commenting that nothing in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record," the Appellate Division said that the Court of Appeals has consistently held that "FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates,'" citing Westchester Rockland Newspapers v Kimball, 50 NY2d at 581.

Having determined that CVFC is an "agency" subject to FOIL, the Appellate Division said that Supreme Court was required to order disclosure of the requested records — without regard to whether they related to governmental or nongovernmental functions — unless one of the exceptions set forth in Public Officers Law §87 (2) was applicable.” Noting that CVFC had not claimed the benefit of any FOIL exemption,* "it must make the requested records available” to Hayes.

The Appellate Division, however, said that it was not persuaded that Supreme Court erred in denying Hayes' request for counsel fees and litigation costs. Explaining that "Reasonable counsel fees 'may' be awarded by the court in a FOIL proceeding where the litigant has 'substantially prevailed,' where the court finds that the record involved was 'of clearly significant interest to the general public' and where 'the agency lacked a reasonable basis in law for withholding the record,'" the court said that even where all of the statutory requirements have been met, "the decision whether to award counsel fees rests in the discretion of the court and will not be overturned in the absence of an abuse of such discretion." 

Although Hayes had “substantially prevailed,” characterizing the documents sought as “not of significant interest to the general public, the Appellate Division decided that Supreme Court had not abused its discretion in denying Hayes' request for attorney fees and costs.

As to Hayes’ complaint concerning CVFC's alleged violation of the Open Meetings Law, the Appellate Division held that although “CVFC is an ‘agency’ under FOIL, it is not a ‘public body’ subject to the Open Meetings Law” and thus its monthly meetings need not be open to the public.

The Open Meetings Law, said the court, requires that "[e]very meeting of a public body … be open to the general public," citing Public Officers Law §103[a], and defines "public body" as "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."

While there was no dispute that the Fire District, as a political subdivision of the State and thus a "public body," is subject to the Open Meetings Law, the Appellate Division noted that, in contrast, CVFC is a private, not-for-profit corporation organized as a charitable organization under the Not-For-Profit Corporation Law and governed by its constitution and bylaws.** 

As the record established that, unlike the meetings of the Board of Fire Commissioners of the Fire District where the official government business of the Fire District is conducted, the meetings of CVFC relate to its internal affairs and the social, recreational and benevolent activities that it undertakes in furtherance of its charitable purpose. Further, said the court, CVFC receives no public funds for such events and activities, which are instead supported through fundraising and donations from private sources. Accordingly, the Appellate Division concluded that CVFC is not a "public body" under the Open Meetings Law.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

** See N-PCL §§201 and 1402[e][1].

The decision is posted on the Internet at:

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