The issue in this case is whether the 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 Open Meetings Law (OML) (Public Officers Law § 100 et seq.) and the Freedom of Information Law (FOIL) (Public Officers Law § 84 et seq.). The Court concludes that they are.

Before this Court is a CPLR article 78 proceeding brought by four citizens — one of them a journalist — who seek to enforce respondents' alleged obligations under the OML and FOIL. Respondents include the New York State Commissioner of Health, against whom the petition seeks no relief, and two entities against which petitioners do seek relief. The first such entity is the Board of Trustees of the "unified governance structure" joining Erie County Medical Center (ECMC) and Kaleida Health Systems (Board of Trustees), so named by virtue of the Final Report of the Commission on Health Care Facilities in the 21st Century, otherwise known as the Berger Commission or the hospital closing commission (the Commission). That Commission report, which now has the force of law, recommended that the "facilities controlled by Erie County [*2]Medical Center Corporation (ECMCC) and Kaleida Health should be joined under a single unified governance structure under the control of an entity other than [ECMCC], Kaleida Health, or any public benefit corporation," and that such "new entity should have a single unified board with powers sufficient to consolidate [hospital] services" heretofore provided by ECMCC and Kaleida Health (Kaleida). The other primary respondent in this proceeding is an entity known as Western New York Health System, Inc. (WNYHS), a not-for-profit corporation that is the successor to or outgrowth of the aforementioned Board of Trustees as the "unified governance structure." Thus, each entity was created, in turn, for the purpose of accomplishing the Commission-required merger or consolidation of EMCCC and Kaleida.

With respect to the OML, the petition alleges that the Board of Trustees and WNYHS (hereinafter respondents) are each a "public body" (Public Officers Law § 102 [2]); that each thus is obligated to conduct its "every meeting" (save for certain authorized executive sessions) in a manner "open to the general public" (Public Officers Law § 103 [a]; see § 102 [1], [3]); but that meetings of the precursor Board of Trustees held in the fall of 2007, and meetings of the board of directors of WNYHS conducted since that time, have been closed to the public. Petitioners originally sought a judgment: determining that respondents violated the OML in so conducting its past meetings; annulling any and all actions taken at such meetings (see Public Officers Law § 107 [1]); and requiring respondents to open all "future meetings" to the public. On the return date of the petition, however, petitioners abjured any demand to annul any actions taken at past meetings conducted by respondents in alleged violation of the OML.

With respect to FOIL, the petition alleges that the Board of Trustees and WNYHS are each an "agency" (Public Officers Law § 86 [3]), thus obligating each to "make available for public inspection and copying all records" of such entity (subject to statutorily specified exceptions) (Public Officers Law § 87 [2]; see § 86 [4]). Petitioners thus seek a judgment annulling respondents' denial of petitioner Quigley's demand for agency records under FOIL, and requiring respondents "to adhere to the requirements of [FOIL] in dealing with all future requests for record disclosure." Finally, petitioners seek an award of attorneys' fees and litigation costs reasonably incurred in connection with this proceeding.

By their respective answers, respondents each deny that they are either a "public body" under the OML or an "agency" under FOIL, and thus they deny any violation of those statutes.^[FN1] It is not disputed, however, that respondents have conducted "meetings" behind closed doors and without notification to the public, and that requests for "records" have been denied by respondents. Thus, the issue here is the applicability of the OML and FOIL to respondents.

As indicated, the proceeding has its genesis in the ongoing merger or consolidation, under a private "single unified governance structure," of ECMCC, a public benefit corporation that operates the hospital facility and health care network known as ECMC (see Public Authorities Law § 3626 et seq.), and Kaleida, a not-for-profit corporation that operates several hospitals in [*3]the Buffalo area, including Buffalo General Hospital. The statute that created ECMCC in 2003 recites that "Erie County Medical Center is [the] public hospital [theretofore] owned and operated by the county of Erie"; that it "is the only major public hospital in western New York"; that ECMC "provides certain sophisticated and specialized patient care services not available in other area hospitals," including treatment of general trauma, burns, spinal cord injury, and head trauma; that the "needs of the residents of the state of New York and of the county of Erie can best be served by the operation of [ECMC] through a public benefit corporation"; that the "creation and operation of [ECMCC] is in all respects for the benefit of the people of the state of New York and of the county of Erie and is a state, county, and public purpose"; and that the "exercise by [ECMCC] of the functions, powers, and duties provided in this title constitutes the performance of an essential public and governmental function" (Public Authorities Law § 3226 [1], [4], [5], [6]). Further, in establishing ECMCC as a public benefit corporation, "body corporate and politic," and "state board" (§ 3228 [1] [a]), the Legislature declared its intent that ECMC

"continue as a general, municipal hospital available to the residents of the city of Buffalo, county of Erie, and western New York state generally, that the health care services provided by the Erie County Medical Center healthcare network's hospital, clinics, long term care facilities, and ancillary facilities by dedicated public employees who treat tens of thousands of New York residents annually will continue, and that the [ECMC] network's role as a leading provider of services to medicaid patients will also continue" (§ 3226 [7]).

As established by Chapter 63 of the Laws of 2005, the Commission was created to study the provision and supply of health care in New York and make recommendations aimed at restructuring the State's health care system by reducing excess capacity and eliminating duplication of services in each region of the State, thereby saving public funds. The Commission was to issue its report and recommendations by December 1, 2006, and the Governor was to transmit his approval of the same to the Legislature by December 5, 2006. In that event, unless the Legislature rejected the recommendations of the Commission in their entirety by December 31, 2006, those recommendations were to become binding upon all public and private entities affected by the recommendations. The enabling legislation imbued the Commissioner with the authority and responsibility to take all steps necessary to implement the recommendations of the Commission.

In November 2006, the Commission issued its report, which contained numerous recommendations for streamlining the delivery of health care in the State. Western Region Acute Care Recommendation 5 of the Commission's report recommended that, as "competing institutions" providing extensively duplicated health care services, Kaleida and ECMC

"be joined under a single unified governance structure under the control of an entity other than [ECMCC], Kaleida Health, or any other public benefit corporation. It is further recommended that this entity consist of a reconstituted single board including representat[ives] of Kaleida Health, [ECMCC], the [*4]University of Buffalo School of Medicine and Biomedical Studies [UB], and community leaders. If the Commissioner of Health determines that the single board proposed by the member entities does not meet these requirements, it is further recommended that the Commissioner of health alter the composition of the board to satisfy these requirements."

By January 2007, the Governor having timely submitted the Commission's report to the Legislature and the latter having failed to countermand the Commission's recommendations, those recommendations became law. Thereafter, the Commissioner made a protracted effort to obtain the consensus of the three affected entities — ECMCC, Kaleida, and UB — concerning the precise composition of the board of the new unified governance structure. When agreement proved elusive, the Commissioner, pursuant to his authority under the Commission's recommendation, reconciled the entities' competing proposals and, on September 12, 2007, appointed respondent Board of Trustees. As initially selected and appointed by the Commissioner, the initially fourteen-member Board of Trustees consisted of three representatives of ECMCC (a public entity itself subject to the OML and FOIL), three representatives of Kaleida, three representatives of the University of Buffalo (likewise a public entity subject to the OML and FOIL), and five leaders from the community at large. Further, the Commissioner appointed the President of the University of Buffalo, a public official, to serve as the initial chairman of the Board of Trustees at its first meeting. The Commissioner decreed that the Board of Trustees would have a fifteenth voting member, namely the CEO to be selected by a vote of the Board. The Commissioner established a meeting quorum, dictated that the Board would be self-perpetuating, but otherwise decreed that all other issues regarding the Board's internal workings, including the issues of future vacancies and succession, would be for the Board itself to decide.

Upon its formation, the Board of Trustees met several times beginning in late September 2007. At a meeting or meetings conducted in October 2007, the Board of Trustees retained legal counsel; elected a chairman and other officers; appointed a CEO and fifteenth board member, namely, the CEO of Kaleida; decided to form respondent WNYHS as a not-for-profit corporation; determined that the respondent Board of Trustees would in effect become the board of directors of WNYHS; and appointed the presidents of the medical/dental staffs at ECMC and [*5]Kaleida, respectively, as the sixteenth and seventeenth members of WNYHS' board of directors.^[FN2]

The certificate of incorporation for WNYHS was officially filed on October 25, 2007. It lists the purposes of WNYHS as "serv[ing] as a co-ordinating and advisory body to Kaleida Health and [ECMC] in order to meet the requirements of the Commission . . ., foster communication and secure cooperation between Kaleida Health and [ECMC], [and] coordinate activities to implement the Commission recommendations and support and promote the missions and welfare of the Erie County Hospitals." Similar purposes are set forth in the by-laws subsequently adopted by WNYHS. Those by-laws call for the transaction of business by the board of directors of WNYHS at regular, special, and annual meetings at which a quorum of directors must be present.

Thereafter, the board of directors of WNYHS met, although how often and on what dates is not precisely known to the Court, which has seen only excerpts from minutes of some meetings. The efforts of such board were directed at, among other things, eliciting the agreement of the responsible officials of the two primarily affected entities, Kaleida and ECMCC, to a specific merger scheme. The officials of ECMCC were initially less than co-operative with regard to the merger, even to the extent of bringing suit to challenge the Commission's requirements and/or the manner in which the State was implementing those requirements. That litigation was settled by the negotiation and execution, on June 27, 2008, of a "Binding Agreement" among WNYHS, Kaleida, and ECMCC. The object of that Binding Agreement is the establishment of a detailed legal and practical framework within which to carry out the merger between ECMCC and Kaleida, thereby fulfilling the requirements of the Commission. The essential details of the merger process are discussed infra.

In the meantime, petitioner Quigley in April 2008 made requests for "records" of WNYHS that WNYHS rejected. The requested documents included copies of minutes of all meetings of respondent Board of Trustees and respondent WNYHS's board of directors since January 1, 2007; and a "[c]omplete and detailed list of financial receipts and expenditures of" WNYHS since January 1, 2007.

On the basis of the parties' submissions, this Court makes the following determinations:

"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 [*6]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; Matter of Gordon v Village of Monticello, 87 NY2d 124, 127 [1995]; Matter of 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 functionalrelationship to affected parties and constituencies' (Matter of 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 (Matter of John P. v Whalen, 54 NY2d 89, 96 [1981]; see Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492 [1994]).^[FN3] 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 [*7]makes a practical evaluation of respondents' functions vis-a-vis 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.

Respondent Board of Trustees ultimately owes its existence to the State enabling legislation and, more proximately, to the recommendations of the State-created Commission, which recommendations now have the force of law. In particular, the Commission has mandated that the hospital "facilities controlled by [ECMCC] and Kaleida Health should be joined under a single unified governance structure under the control of an entity other than [ECMCC], Kaleida Health, or any public benefit corporation," and that those health care "services" be "consolidate[d]" by the "single unified board" of such "new entity." Ultimately, the Commission has mandated nothing less than the abolition of ECMCC as a public benefit corporation and the folding of its physical and human assets, along with the assets of Kaleida, into a newly created entity under the governance of respondents. Further, the initial members of respondent Board of Trustees were selected and appointed by the State Commissioner of Health. Like the existence of the Board of Trustees of the "unified governing structure" itself, the Commissioner's authority to appoint the initial board members derived from the enabling legislation and the now legally binding recommendations of the State-created Commission. By the same token, WNYHS, as successor to the precurser Board of Trustees, ultimately owes its existence to the enabling legislation and the requirements of the State-created Commission.

Although respondents are thus clearly creatures of the State and derive their powers from state law (see Smith, 92 NY2d at 713-714), the Court deems it far more important to the analysis that respondents have exercised and, in the case of WNYHS, continue to exercise a quintessentially governmental function insofar as they have been and are overseeing the merger of ECMCC, a public benefit corporation, with the privately owned Kaleida, and overseeing the consolidation of the health care services currently being provided by ECMC and the Kaleida hospitals. A realistic understanding of that function leads to the conclusion that respondents have been officially made responsible for implementing the requirements of the Commission (read: state law) by merging ECMCC out of existence. To that end, the original recommendation of the Commission was that a new entity be created out of ECMC and Kaleida, that the new entity not take the form of a public benefit corporation, that the new entity be imbued with "power sufficient to [decide] the service mix provided at any of the individual institutions under its control," i.e., ECMCC and Kaleida, and that those services be consolidated. The Commission's report notes that the dissolution of ECMCC as a public benefit corporation might require legislative action. Similarly, the Commissioner's charge to the initial Board of Trustees appointed by him was that such Board continue "implementing the requirements of the Commission" by "reaching out to ECMC and Kaleida to determine the precise nature of the relationship between the parties." In its certificate of incorporation and by-laws, WNYHS listed [*8]its corporate purposes as serving as "co-ordinating and advisory body to Kaleida Health and [ECMC] in order to meet the requirements of the Commission . . ., foster communication and secure cooperation between Kaleida Health and [ECMC], [and] coordinate activities to implement the Commission recommendations and support and promote the missions and welfare of the Erie County Hospitals." As WNYHS acknowledges, from the time it was formed until a merger agreement could be reached, WNYHS' primary purpose was to "broker" an accord between ECMCC and Kaleida.

Finally, and perhaps most pertinently, the Court notes the provisions and terms of a "Binding Agreement" entered into on June 27, 2008 among ECMCC, Kaleida, and WNYHS. That agreement specifically grants WNYHS "all necessary power and authority to implement the requirements of [Commission's recommendation] as the same may be modified or interpreted by the New York State Department of Health . . . [by] bring[ing] ECMCC and Kaleida under a single unified governance structure." The Binding Agreement further recites the parties' desire "to openly enter into a full asset merger pursuant to which the assets of ECMCC and Kaleida shall be contributed to WNYHS." Indeed, the Binding Agreement sets forth the parties' mutual agreement to accomplish "a full and complete integration of ECMCC and Kaleida by way of a full asset merger, [thereby] combining the assets and operations of ECMCC and Kaleida into WNYHS," with such future merger to "become effective at such time as WNYHS determines" that certain specified "conditions are satisfied," whereupon "the separate legal existence[s] of ECMCC and Kaleida shall cease." Among the specified conditions are the obtaining of all "necessary legislative amendments and approvals, including any approvals required by the state and county legislature[s] in order for WNYHS to become the "equivalent" of ECMCC's "sole member" (i.e., as though ECMCC were governed, like Kaleida, as a not-for-profit corporation rather than a public benefit corporation); the obtaining of all "necessary and governmental funding" to effectuate the merger, including funding adequate to pay retirement benefits and postretirement medical coverage to the public employees of ECMCC; and the taking of all "steps necessary to convert ECMCC employees from public employees to employees of WNYHS." In empowering WNYHS to take all such actions, the Binding Agreement and explicitly states that "WNYHS' powers and authority with respect to ECMCC and Kaleida shall be identical" (or as identical as possible given ECMCC's status as a public benefit corporation rather than a not-for-profit corporation). The Binding Agreement goes on to state that, pending the completion of the merger, as soon as permitted by the appropriate legislative authorities, and notwithstanding the nominal "[a]utonomy" of ECMCC and Kaleida during the interim period, WHYHS will exercise significant "Reserved Powers" with respect to the continued or interim operations of both ECMCC and Kaleida (and that, concomitantly, Kaleida and ECMCC will refrain from exercising those powers reserved to WNYHS). Those reserved powers of WNYHS include submission of applications for governmental certificates of need; negotiation and approval of managed care contracts; approval and oversight of operating budgets and capital budgets; oversight and implementation of the strategic plans of ECMCC and Kaleida consistent with the needs of the communities served by them; approval of marketing and advertising plans; approval of loans; and ultimately, approval of "any merger, consolidation, or transfer of all or substantially all of the assets of ECMCC or Kaleida," "the dissolution of ECMCC or Kaleida," and the "closure of any ECMCC or Kaleida facility" or major service. It was specifically agreed that, during the interim [*9]period, WNYHS would serve as the co-operator of ECMCC under article 28 of the Public Health Law. The provisions of the Binding Agreement thus corroborate WNYHS's explicit concessions that, until the merger is accomplished, "WNYHS functions" and "acts as the corporate parent of Kaleida and ECMC," and that "WNYHS possesses final authority on certain corporate decisions" that otherwise would be made by the respective boards of ECMCC and Kaleida. It is notable that the Binding Agreement perpetuates the arrangement whereby representatives of ECMCC and the University of Buffalo will continue to serve as directors of WNYHS (along with representatives of Kaleida and members of the community at large) both until and afterthe merger.

Based on the foregoing, this Court concludes that respondents are by no means each a merely advisory body to government (see Smith, 92 NY2d at 713-715; Matter of Syracuse United Neighbors v City of Syracuse, 80 AD2d 984, 984-985 [4th Dept 1981], appeal dismissed 55 NY2d 995 [1982]; cf. Jae v Board of Educ. of Pelham Union Free School Dist., 22 AD3d 581, 584 [2d Dept 2005], lv denied 6 NY3d 714 [2006]; Goodson Todman Enters., Ltd. v Town Bd. of Milan, 151 AD2d 642, 643 [2d Dept 1989], lv denied 74 NY2d 614 [1989]; Poughkeepsie Newspaper Div. of Gannett Satellite Information Network v Mayor's Intergovernmental Task Force on New York City Water Supply Needs, 145 AD2d 65, 67 [2d Dept 1989]; see generally Perez, 5 NY3d at 528). Instead, respondents each have exercised and continue to exercise the governmental function of guiding the near-term direction of ECMCC during its remaining existence; deciding the status and eventual fate of that public benefit corporation, its facilities, and its thousands of public employees; and determining the manner in which hospital services will be provided currently and in the near future to the patient population now served by ECMC, including a large number of indigent patients who constitute public charges. Moreover, in such governmental matters, respondents possess and exercise real, effective, and final decision-making authority (see Smith, 92 NY2d at 714). During the interim period, respondents have had or will have the final word concerning the assets, budgets, income, expenditures, services, and employees of ECMCC and will further control any public (i.e., Erie County) funding received by ECMCC. Of course, "[m]anagement of public moneys is public business" (Holden, 80 AD2d at 381; see Smith, 92 NY2d at 714-716). If, by operating "the only major public hospital in western New York," the public benefit corporation and "state board" known as ECMCC thereby serves the needs of the public and "perform[s] an essential public and governmental function" (Public Authorities Law § 3226 [1], [6]; § 3228 [a] [1]), then this Court sees no possible alternative to its finding that the entities legally charged with administering the operations of ECMC during the interim period and eventually winding up ECMCC's affairs are likewise "perform[ing] an essential public and governmental function" (Public Authorities Law § 3226 [6]).

Given their origins and functions, the contention that respondents do not conduct governmental business by making policy for ECMCC seems to this Court to ignore the realities of the situation. WNYHS itself concedes that it will "deci[de] . . . the financial and strategic issues concerning [ECMCC's] specific internal affairs" pending the merger. WNYHS thus is clearly making governmental policy, and moreover is doing so under the mandate of the State Legislature, in the place or stead of the lawful functionaries of an established public benefit corporation, and with the active co-operation of the State Commissioner of Health and possibly other governmental entities at various levels of government. The Court rejects WNYHS' assertion that, if ECMCC and Kaleida had themselves voluntarily formed WNYHS without the [*10]intervention of the Commissioner of Health, then WNYHS unquestionably would be a private entity beyond the reach of the OML. The Court notes instead that, if ECMCC itself had voluntarily turned over its own interim operations (not to mention the wind-up of its affairs as a public benefit corporation) to a nominally private entity such as WNYHS, the Court would just as readily conclude that the private entity was exercising a governmental function during the interim period. The result can be no different where, as here, the interim operations and the wind-up of the affairs of ECMCC were delegated to the nominally private entity by the act or facilitation of the State Legislature, the State-created Commission, and the State Commissioner of Health. In arguing the inapplicability of the OML to themselves as nominally private entities, respondents in effect contend that the public has no legitimate interest in remaining informed concerning the continued operations, legal status, and existence of a public benefit corporation that, supported in large part by public monies, provides municipal hospital services to economically and medically disadvantaged members of that public. That contention simply cannot be squared with the "letter and spirit" of the OML (Syracuse United Neighbors, 80 AD2d at 985). The Court thus concludes that respondents each were or are a "public body" whose board meetings are subject to the OML (see Holden, 80 AD2d at 380-381). The Court further concludes that respondent WNYHS will continue to be a public body whose directors' meetings are subject to the OML until such time as the subject merger is accomplished and ECMCC is thereby dissolved as a public benefit corporation.

This Court has considered and expressly rejects the idea of obligating respondents to comply with the requirements of the OML only insofar as their deliberations concern or have concerned the continuation and wind-up of the operations of ECMCC, as opposed to those of Kaleida (cf. Holden, 80 AD2d at 381). The fundamental fact here is that respondents are either each a "public body" or they are not. Moreover, upon reflection, this Court concludes that the chances that respondents may have met or might meet to discuss only the affairs of Kaleida, without a concomitant consideration of whether to continue or terminate duplicative services provided by ECMCC, to be largely theoretical and not grounded in the realities of the hospital merger and health care services consolidation. Of course, it remains permissible for the directors of respondent WNYHS to go into "executive session" to address matters of no legitimate public interest (see Public Officers Law §§ 102 [3], 103 [a], 105).

"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" (Matter of 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' " (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 [*11]to the records of government" (Matter of Capital Newspapers v Whalen, 69 NY2d 246, 252; see Buffalo News, Inc. v Buffalo Enterprise Dev. Corp. (84 NY2d 488,492 [1994]) Matter of 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]; Matter of 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 [*12]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]).

On the other hand, the parties' submissions do not contain enough information to enable the Court to determine whether respondent WNYHS appropriately denied petitioner Quigley's contemporaneous demand for a "[c]omplete and detailed list of financial receipts and expenditures of" WNYHS since January 1, 2007. The Court notes that, under FOIL, a governmental agency generally has no obligation to create records or documents that it does not otherwise maintain (see Public Officers' Law 89 [3]; Data Tree, LLC v Romaine, 9 NY3d 454 [2007]). The Court directs, however, that if a "list of financial receipts and expenditures of" WNYHS exists as such, it must be provided to petitioner Quigley.

The Court is unable to grant petitioner's request for future relief under FOIL. Any such relief would be dependent upon the precise nature of any requested records and the reasons given by the agency for any prospective denial. The Court reiterates, however, that respondents are generally subject to FOIL and that the Court thus could not uphold a blanket denial by respondents of petitioners' requests for information.

In any proceeding brought pursuant to the OML, "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party" (Public Officers Law § 107 [2]).^[FN4] Under the somewhat more stringent provisions of FOIL, a court may in its discretion award reasonable counsel fees and litigation costs to a party that "substantially prevailed" in the proceeding, provided that the court finds that "the agency lacked a reasonable basis in law for withholding the record" (Public Officers Law § 89 [4] [c]; see Beechwood Restorative Care Ctr., 5 NY3d at 441).^[FN5] Under neither provision should an award of attorneys' fees be made to the prevailing party simply as a matter of course (see Gordon v Village of Monticello, Inc., 87 NY2d 124, 127 [1995]).

Given the purposes for which the OML has been enacted and the course and outcome of [*13]this litigation, the Court finds it appropriate in this case to exercise its discretion under the OML to award counsel fees and litigation costs to petitioners, who clearly have prevailed in this matter and thereby have vindicated an important public interest (see Gordon, 87 NY2d at 127-128). Further, this Court finds that the statutory prerequisites have been met for an award of attorneys' fees to petitioners under FOIL. Concerning that latter finding, even if the Court were to find that, given the novel legal issues in contention here, respondents had a "reasonable basis in law for withholding the record" (Public Officers Law § 89 [4] [c]), the Court would find it impossible to differentiate between those counsel fees and litigation costs incurred to vindicate petitioners' rights under FOIL and those incurred to vindicate their rights under the OML. Any dispute as to the appropriate amount of such fees and costs may be submitted to this Court via a new application by petitioners.

Accordingly, the petition is DISMISSED against respondent Daines. As against respondents Board of Trustees and WNYHS, the petition is GRANTED to the extent of determining that those respondents have violated the OML insofar as they have conducted meetings of the precursor Board of Trustees or of the board of directors of WNHYS without publicizing such meetings and opening such meetings to the public. The petition is further GRANTED to the extent of requiring respondent WNYHS to adhere to the requirements of the OML until such time as the hospital merger is completed and ECMCC is dissolved as a public benefit corporation. The petition is further GRANTED to the extent of annulling respondents' denial of petitioner Quigley's demand for minutes of meetings of the precursor Board of Trustees and of the board of directors of WNYHS. Finally, the petition is GRANTED to the extent of awarding petitioners attorneys' fees and litigation costs under the OML and FOIL, with the appropriate amount of such fees and costs to be agreed upon by the parties or, absent such agreement, to be determined by this Court upon a new and further application by petitioners. To the extent not specifically addressed herein,the petition is DENIED.

SO ORDERED:

Hon. Patrick H. NeMoyer, J.S.C.