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…

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