Opinion
February 22, 1999
Appeal from the order of the Supreme Court, Rockland County (Sherwood, J.).
Ordered that the order dated January 12, 1998, is affirmed, without costs or disbursements; and it is further,
Ordered that the cross appeal from the judgment is dismissed as abandoned, without costs or "disbursements; and it is further,
Ordered that the judgment is reversed, on the law, without costs or disbursements, and the defendants' application for costs and sanctions is denied in its entirety; and it is further,
Ordered that the appeal from the order dated June 11, 1998, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument.
The plaintiff commenced this action seeking a declaration that the defendants, two not-for-profit corporations, were subject to the disclosure requirements of the Freedom of Information Law (Public Officers Law art 6, hereinafter FOIL), because they work closely with State agencies. However, the court properly found that the defendants are not subject to FOIL. The defendants were formed by private individuals and each is governed by a board of directors which is self-elected. Both defendants are primarily privately funded, and their operating budgets are not required to be approved by any governmental body. Although the defendants' objectives appear to coincide partly with those of the New York State Department of Environmental Conservation and the Office of Parks, Recreation and Historical Preservation, and they work closely with those two State offices, the defendants are not controlled by either of the agencies.
Since neither of the defendants is an "agency" within the meaning of Public Officers Law § 87, neither defendant is subject to FOIL ( see, Matter of Farms First v. Saratoga Economic Dev. Corp., 222 A.D.2d 861; see generally, Matter of Buffalo News v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488; Goodson Todman Enters, Ltd. v. Town Bd., 151 A.D.2d 642; Matter of Poughkeepsie Newspaper Div. v. Mayor's Intergovernmental Task Force on N.Y. City Water Supply Needs 145 A.D.2d 65).
However, the court improvidently exercised its discretion in imposing sanctions, in the form of counsel fees, on the plaintiff's counsel ( see, 22 NYCRR 130-1.1 [c]). "FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose" ( Matter of Farbman Sons v. New York City Health Hosps. Corp., 62 N.Y.2d 75, 80). Moreover, access to records of a government agency under FOIL is not affected by the fact that there is pending or potential litigation between the person making the request and, the agency ( see, Matter of Farbman Sons v. New York City Health Hosps. Corp., supra, at 78). Consequently, the fact that a corporate client of the plaintiff's attorney is involved in litigation with the defendants has no bearing on the plaintiff's FOIL requests.
The defendants' status as not-for-profit corporations also does not render the lawsuit frivolous, inasmuch as there is no per se rule that a not-for-profit corporation cannot be deemed "agency" and, therefore, be subject to FOIL ( see, Matter of Buffalo News v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, supra). Based on the allegations contained in the pleadings, it was not frivolous for the plaintiff to commence this lawsuit to test the reach of FOIL ( see, Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575).
O'Brien, J. P., Joy, Krausman and Luciano, JJ., concur.