April 24, 2019

Determining if a "non-governmental entity" is an "agency" within the meaning of the New York State's Freedom of Information Law and thus subject to its provisions

As the Court of Appeals opined in Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, New York State's Freedom of Information Law [FOIL] "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies."* For the purposes of FOIL, the term agency includes "any ... governmental entity performing a governmental ... function for the state or any one or more municipalities thereof." 

On occasion, however, a nongovernmental organization may be found to fall within the ambit of the term "agency" as described in FOIL and thus be deemed to be subject to its mandates with respect to the public's access to its records and documents.

Among the attributes of an entity that may be considered by courts in determining whether a nongovernmental organization is "an agency" for the purposes of FOIL are the following:

1. Is the organization required to disclose its annual budget?

2. Are the organization's offices in a public building?

3. Is the organization subject to a governmental entity's authority with respect to the hiring or firing personnel?

4. Does the organization have a board comprised primarily of governmental officials?

5. Was the organization created exclusively by a governmental entity?

6. Does the organization describes itself as an agent of a governmental entity?

When an emergency medical technician [Plaintiff] submitted a FOIL requests for certain records related to the rejection of Petitioner's application to be reinstated as a member of the Cortlandt Community Volunteer Ambulance Corps, Inc. [Ambulance], Ambulance "declined the requests on the ground that it was not an 'agency' required to comply with FOIL as defined in Public Officers Law §86(3)." In response, Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing Ambulance to produce the requested records, which petition Supreme Court granted.

Ambulance appealed and the Appellate Division vacated the Supreme Court's order and "on the law and the facts," denied Plaintiff's petition "in its entirety" and dismissed the proceeding. The Appellate Division had determined that Ambulance "does not fall within the definition of an agency" for the purposes of FOIL and thus was not subject to the requirements of FOIL.

Ambulance, said the court is a "not-for-profit corporation" that has contracted with the Cortlandt Ambulance District No. 1 [District], a subsidiary of the Town of Cortland, to provide emergency medical services to persons located within the District for a fixed annual sum.

The contract between the parties provides that Ambulance is to comply with "all orders, rules, regulations and demands made by the Town" in order to provide "adequate ambulance protection to residents within the District" and this constituted the only involvement of the Town and District with respect to operation of Ambulance. Neither the Town nor the District had formed and incorporated Ambulance and neither has the authority to select or appoint Ambulance's directors, officers, or members of Ambulance. For its part, Ambulance is not required to submit its budget to the Town or District for review nor does either the Town or the District have authority to approve Ambulance's budget or review or audit Ambulance's financial books and records.

The Appellate Division also noted that Ambulance receives the majority of its funding from sources other than the payments it receives from the District pursuant to the contract and purchases all of its equipment, supplies, and services from its own assets. 

Further, Ambulance receives no funding from the Town or District apart from the agreed upon contract payments and Ambulance is solely responsible for the maintenance and expenses related to its buildings, has the authority to hire staff, who are solely its employees, and it obtains its own workers' compensation policy for coverage of its employees and members. None of Ambulance's personnel are covered by the workers' compensation policy maintained by the District or the Town for their respective employees and volunteers and neither the District nor the Town has authority to review or approve contracts entered into by Ambulance for professional or other services it deems necessary for its operation.

Considering the defacto relationship of the parties, the Appellate Division concluded that "Under these circumstances, it cannot be said that Volunteer Ambulance is a 'governmental entity performing a governmental . . . function' so as to render it an agency subject to the mandates of FOIL."

In contrast, in Ryan v Mastic Volunteer Ambulance Co., 212 AD2d 716, the Appellate Division determined that Mastic Volunteer Ambulance Company [Mastic] was an "agency" within the meaning of FOIL.

The Ryan court found that Mastic performed a governmental function and it performs that function solely for the Mastic Ambulance District, a municipal entity and a municipal subdivision of the Town of Brookhaven. Further, Mastic submitted a budget to, and receives all of its funding from, the Town and Mastic's allocation of its funds is "scrutinized by the Town."

Thus, concluded the court, Mastic "clearly falls within the definition of an agency" as defined in FOIL and is subject to its provisions."

* The basic concept underlying FOIL is that all government documents and records, other than those having access to them specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. As to the release of public records specifically limited by statute, examples include Education Law §1127 [Confidentiality of records] and §33.13 of the Mental Hygiene Law [Clinical records, confidentiality]. 

The Cortlandt Community Volunteer Ambulance decision is posted on the Internet at: