Saturday, July 14, 2012

Entities subject to the Open Meetings Law and the Freedom of Information Law


Entities subject to the Open Meetings Law and the Freedom of Information Law
Reese v Daines, 20 Misc 3d 1145(A)

Justice NeMoyer’s ruling in the Reese case provides summaries of the basic issues and case law involved in satisfying the mandates of New York’s Open Meetings Law (OML) (Public Officers Law § 100 et seq) and its Freedom of Information Law (FOIL), Public Officers Law Section 84 et. seq.

Justice NeMoyer framed the issue in this case as follows: are nominally private entities legally responsible for carrying out the legislatively mandated merger of the operations of a public hospital and a private hospital operator are, pending such merger, subject to the provisions of the OML and FOIL. The Court conclusion: they are subject to both laws.

As to the Open Meetings Law, Justice NeMoyer said:

“In enacting the Open Meetings Law, the Legislature sought to ensure that public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy’ (Public Officers Law §100)” (Perez v City Univ. of New York, 5 NY3d 522, 528 [2005]). “Thus, all public bodies’ are subject to the Open Meetings Law” (id., at 528), and “[e]very meeting of a public body [other than a valid executive session] shall be open to the general public” (Public Officers Law §103 [a]). “Meeting’ means the official convening of a public body for the purpose of conducting public business” (Public Officers Law §102 [1]), and “ [p]ublic body’ means 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” (Public Officers Law § 102 [2]). It is to be noted that, as defined by General Construction Law §66, a “public corporation” includes a “public benefit corporation” such as ECMCC.

In applying the OML, the courts construe its provisions liberally in accordance with its stated purposes (see Perez, 5 NY3d at 528; Gordon v Village of Monticello, 87 NY2d 124, 127 [1995]; Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of NY at Farmingdale, 87 NY2d 410, 418 [1995]).

“While an entity must be authorized pursuant to state law to be within the ambit of the Open Meetings Law . . . , not every entity whose power is derived from state law is deemed to be performing a governmental function. Certainly not all advisory bodies that issue recommendations to state agencies are performing governmental functions for purposes of compliance with the Open Meetings Law. Rather, in each case the court must undertake an analysis that centers on the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies’ (Smith v City Univ. of NY, 92 NY2d 707, 713 [1999])” (Perez, 5 NY3d at 528; see Snyder v Third Dept. Judicial Screening Committee, 18 AD3d 1100, 1101 [3d Dept 2005], lv denied 5 NY3d 711 [2005]).

At the outset, this Court notes that the advisory opinions of the Committee on Open Government (which were inconsistent here and upon which both sides thus rely to various extents) are “neither binding upon the agency nor entitled to greater deference in an article 78 proceeding than is the construction of the agency” itself (John P. v Whalen, 54 NY2d 89, 96 [1981]; see Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492 [1994]).

The Court further acknowledges that the precursor Board of Trustees and the since-incorporated WNYHS are, in basic form, private entities, which would militate against a finding that they are “public bod[ies]” subject to the OML. The nominally private charter or status of the entities in question is not determinative, however (see Smith, 92 NY2d at 713-716; Holden v Board of Trustees of Cornell Univ., 80 AD2d 378, 380-381 [3d Dept 1981]).

The Court nonetheless concludes that respondent Board of Trustees is (or was) a “public body” within the meaning of the OML, and that respondent WNYHS is likewise “a public body” within the meaning of that statute (see Smith, 92 NY2d at 713-715; Holden, 80 AD2d at 380-381). Both entities require a meeting quorum in order to conduct “public business” in the performance of a “governmental function for the state,” a state “agency or department,” and/or a “public corporation” (Public Officers Law §102 [2]). In reaching those conclusions, the Court takes notice of the authorities under which respondents were created or otherwise originated, and it makes a practical evaluation of respondents’ functions I various levels of government.

However, the Court takes pains to note that it is not, as argued by petitioner, only or primarily the functional relationship between respondents and the State actors, including the Legislature, the State-created Commission on hospital closings, and the State Department of Health, that is dispositive here. Rather, this matter additionally hinges upon the functional relationship between respondents and the public benefit corporation known as ECMCC.

In sum, the issue here is not so much the presence of governmental control over the activities of respondents, but rather the legislative delegation of control by respondents over a governmental entity (i.e, ECMCC) and its patently governmental activities.

Regarding the Freedom of Information Law, Justice NeMoyer stated that:

"The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy" (Alderson v New York State Coll. Of Agric. & Life Sciences at Cornell Univ., 4 NY3d 225, 230 [2005] [internal quote marks and citation omitted]; see Perez, 5 NY3d at 528 [FOIL guarantees "[t]he people's right to know the process of governmental decision-making and to review the documents . . .. leading to determinations"]; see also Public Officers Law § 84 ["(G)overnment is the public's business and . . . the public . . . should have access to the records of government in accordance with the provisions of (FOIL)"]). "An agency's records are presumptively open to public inspection, without regard to need or purpose of the applicant' "[but see end note * ] (Beechwood Restorative Care Ctr. V Signor, 5 NY3d 435, 440 [2005], quoting Buffalo News, 84 NY2d at 492).

"FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government" (Capital Newspapers v Whalen, 69 NY2d 246, 252; see Buffalo News, Inc. v Buffalo Enterprise Dev. Corp. (84 NY2d 488,492 [1994]) Russo v Nassau County Community Coll., 81 NY2d 690, 697 [1993]). Further, the term "agency" under FOIL must be given "'its natural and most obvious' meaning" and must be "'liberally construed'" to further the general purpose of FOIL (Russo, 81 NY2d at 697- 698; see Buffalo News, Inc., 84 NY2d at492; see also Capital Newspapers, 69 NY2d at 251-252).

"When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search (see Public Officers Law § 87 [2]; § 89 [3]; Corvetti v Town of Lake Pleasant, 239 AD2d 841, 843 [3d Dept 1997])" (Beechwood Restorative Care Ctr., 5 NY3d at 440-441).

For similar reasons as set forth supra, this Court determines that respondents each were or are a public "agency," meaning "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, counsel, or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof" (Public Officers Law § 86 [3]).

Indeed, respondents essentially concede that if an entity is a "public body" for purposes of the OML, it is a public "agency" for purposes of FOIL (see generally Perez, 5 NY3d at 528), although the converse is not necessarily true (see Citizens for Alternatives to Animal Labs, Inc. v Board of Trustees of State Univ. of New York, 92 NY2d 357, 362 [1998]). Again, insofar as they have been legislatively and administratively delegated the authority to oversee the continued operations of the public benefit corporation known as ECMCC, the disposition of its assets, the fate of its public employees, and its eventual dissolution as a public benefit corporation, respondents undoubtedly are each a "board" or "other governmental agency performing a governmental or proprietary function" for the State of New York and/or County of Erie, or for the public benefit corporation known as ECMCC (Public Officers Law §86 [3]).

Again, contrary to the contention of respondents, the fact that WNYHS is incorporated as a private, not-for-profit entity is far from determinative with respect to its obligations under FOIL (see Westchester-Rockland Newspapers v Kimball, 50 NY2d 575, 580-581 [1980] [held: "voluntary organization" such as volunteer fire department or company that provides essential governmental service is nonetheless subject to FOIL]; Canandaigua Messenger, Inc. v Wharmby, 292 AD2d 835 [4th Dept 2002] [respondent "Recreation Development Corporation" is "public body" as defined by OML]; see also Stoll ex rel Maas v New York State Coll. of Veterinary Med. at Cornell Univ., 94 NY2d 162, 168 [1999] ["more public aspects of the (private entities' affairs) may well be subject to FOIL"]).

In Buffalo News, Inc. v Buffalo Enterprise Dev. Corp. (84 NY2d 488, supra), the Court of Appeals held a nominally private, not-for-profit entity to be an "agency" within the meaning of FOIL. In that case, the respondent agency was held to be "performing an essential governmental function" inasmuch as it was created "to lessen the burdens of government" and to "act in the public interest" by administering public loan programs to encourage private business development and thereby reduce unemployment; was subject to extensive public regulation, funding and other review; had numerous public officials on its board of directors; and otherwise "enjoy[ed] many attributes of public entities" (see id. at 490-492; see also Westchester-Rockland Newspapers, 50 NY2d at 580-581).

Similarly, respondents here were created by the State specifically for the purpose of carrying out the essentially governmental function of correcting a perceived oversupply of hospital and other medical services in the community by merging two hospital operators, one of them a public benefit corporation, into a new entity that will become the major provider of hospital and other health care services in Western New York. As "agenc[ies]" within the meaning of FOIL, respondents were without authority to deny the April 2008 demand of petitioner Quigley for copies of minutes of all meetings of respondent Board of Trustees and respondent WNYHS's board of directors since January 1, 2007. Such meeting minutes necessarily constitute "public records" that must be made available to petitioner Quigley pursuant to FOIL (see Public Officers Law §§86 [4]; 87 [2]; see also § 106 [3]).

The full text of the decision is posted on the Internet at:

*N.B. In New York State Rife and Pistol Asso., Inc., v Kelly, 55 AD3d 222, the Appellate Division held that NYC Police Commissioner Kelly is exempt from having to comply with the Association's Freedom of Information Law (FOIL) request because he met his burden of providing specific proof of the Association's intent to use the requested material for the impermissible purposes of fund-raising and/or commercial gain. The Association had filed a FOIL request seeking a list, in digital format, of the names and addresses of all pistol licensees in the City of New York, other than those authorized to carry a weapon pursuant Public Officers Law §89(7). 

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