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FOIL-AO-13496

July 24, 2002

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

I have received your letter concerning your request made to Health Research Inc. ("HRI") for a copy of your personnel file pursuant to the Personal Privacy Protection Law. In response to the request, you were informed that "HRI is a private, not-for-profit corporation and as such not subject to the Public Officer's [sic] law which applies to State agencies."

You have sought assistance in the matter, and this regard, I offer the following comments.

It is noted at the outset that the Personal Privacy Protection Law has been the subject of few judicial decisions. However, there are several decisions rendered under the Freedom of Information Law that indicate, in my view, that HRI is required to comply with that statute. Because those decisions are pertinent in ascertaining whether HRI is subject to the Personal Privacy Protection Law, my initial remarks will focus on the Freedom of Information Law.

As you may be aware, the Freedom of Information Law is applicable to agency records, and §86(3) defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Although the definition of "agency" refers to "governmental" entities performing a governmental function, the courts have considered the functions of not-for-profit corporations closely associated with government and the extent to which there is governmental control over those corporations in determining whether they are subject to the Freedom of Information Law.

I note, too, that HRI is included within the definition of "state agency" in §53-a of the State Finance Law. Subdivision (5) of that statute provides that:

"'State agency' means (a) any state department, bureau, commission, authority or division and shall include the state university;

(b) any institution or organization designated and authorized by law to act as agent for the state, including Cornell University and Alfred University as representatives of the state university board of trustees for the administration of statutory or contract colleges at those institutions;

(c) any public corporation or institution the governing board of which consists of a majority of state officials serving ex-officio or has one or more members appointed by the governor; and

(d) certain membership corporations closely affiliated with specific state agencies and whose purposes are essentially to support, supplement or extend the functions and programs of such state agencies, specifically: Youth Research, Inc., The Research Foundation for Mental Hygiene, Inc., Health Research Inc., The Research Foundation of the State University of New York, and Welfare Research, Inc."

In a decision in which the question was essentially the same as yours, it was held that a community college foundation, also a not-for-profit corporation, and its records are subject to the Freedom of Information Law in conjunction with the following:

"At issue is whether the Kingsborough Community College Foundation, Inc (hereinafter 'Foundation') comes within the definition of an 'agency' as defined in Public Officers Law §86(3) and whether the Foundation's fund collection and expenditure records are 'records' within the meaning and contemplation of Public Officers Law §86(4).

The Foundation is a not-for-profit corporation that was formed to 'promote interest in and support of the college in the local community and among students, faculty and alumni of the college' (Respondent's Vertified Answer at paragraph 17). These purposes are further amplified in the statement of 'principal objectives' in the Foundation's Certificate of Incorporation:

'1 To promote and encourage among members of the local and college community and alumni or interest in and support of Kingsborough Community College and the various educational, cultural and social activities conducted by it and serve as a medium for encouraging fuller understanding of the aims and functions of the college'.

Furthermore, the Board of Trustees of the City University, by resolution, authorized the formation of the Foundation. The activities of the Foundation, enumerated in the Verified Petition at paragraph 11, amply demonstrate that the Foundation is providing services that are exclusively in the college's interest and essentially in the name of the College. Indeed, the Foundation would not exist but for its relationship with the College" (Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988).

HRI was created as a membership corporation in 1953 and later designated as a not-for- profit corporation in 1973. Its certificate of Incorporation states that the purposes of HRI include:

"(a) To assist in developing and increasing the facilities of the New York State Department of Health, the institutions and agencies within such Department or associated therewith, and other departments of health within the State, to provide more extensive conduct of studies and research into the causes, nature and treatment of diseases, disorders and defects of particular importance to the public health by encouraging gifts, grants, bequests, devises, contributions and donations of real and personal property to the corporation for such purposes:

(b) To receive, hold and administer gifts or grants for the purposes of the corporation and in keeping with the research, prevention and treatment purposes and objectives of the New York State Department of Health, the institutions, and agencies within such Department or associated therewith; and other departments of health within the State;

(c) To conduct and finance the conduction of studies and research in any and all fields of the arts and sciences and in keeping with the purposes and objectives of New York State Department of Health, the institutions and agencies within such Department or associated therewith; and other departments of health within the State..."

Based on the foregoing, as in the circumstance of the community college foundation, HRI's essential purpose is to enhance the functioning of a state agency, and it would not exist but for its relationship with that agency. That being so, I believe that HRI is an agency subject to the Freedom of Information Law. To suggest otherwise would, in my opinion, exalt form over substance.

There is precedent indicating in other instances that a not-for-profit corporation may indeed be an "agency" required to comply with the Freedom of Information Law. In Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case involving access to records relating to a lottery conducted by a volunteer fire company, the Court of Appeals, the state's highest court, found that volunteer fire companies, despite their status as not-for-profit corporations, are "agencies" subject to the Freedom of Information Law. In so holding, the Court stated that:

"We begin by rejecting respondent's contention that, in applying the Freedom of Information Law, a distinction is to be made between a volunteer organization on which a local government relies for performance of an essential public service, as is true of the fire department here, and on the other hand, an organic arm of government, when that is the channel through which such services are delivered. Key is the Legislature's own unmistakably broad declaration that, '[a]s state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible' (emphasis added; Public Officers Law, §84).

For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objections cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" (id. at 579]. In another decision rendered by the Court of Appeals, Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court found that a not-for-profit corporation, based on its relationship to an agency, was itself an agency subject to the Freedom of Information Law. The decision indicates that:

"The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an 'agency' only if there is substantial governmental control over its daily operations (see, e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). The Buffalo News counters by arguing that the City of Buffalo is 'inextricably involved in the core planning and execution of the agency's [BEDC] program'; thus, the BEDC is a 'governmental entity' performing a governmental function for the City of Buffalo, within the statutory definition.

"The BEDC's purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo...In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant's arguments," (id., 492-493).

As suggested earlier, HRI would not exist absent its relationship with a state agency. It carries out its functions, powers and duties for the State Department of Health, and §53-a of the State Finance Law treats it as a state agency. In consideration of those factors, I believe that a court would determine that HRI is an "agency" with a responsibility to comply with the Freedom of Information Law.

Even if HRI is not an "agency", I believe that its records would fall within the scope of the Freedom of Information Law due to its relationship with State Department of Health, which is clearly an agency. As indicated at the outset, that statute pertains to agency records. Section 86(4) defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes".

The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved a case cited earlier concerning documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" (see Westchester Rockland, supra, 581) and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).

The point made in the final sentence of the passage quoted above appears to be especially relevant, for there appears to be "considerable crossover" in the activities of HRI and the Department of Health.

Perhaps most pertinent is a determination rendered by the Court of Appeals in which it was found that materials received by a corporation providing services by contract for a branch of the State University were "kept" on behalf of the University, and, therefore, constituted "records" falling with the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410, 417 (1995)]. Therefore, if a document is produced for an agency, it constitutes an agency record, even if it is not in the physical possession of the agency.

For purposes of the Personal Privacy Protection Law, the term "agency" is defined in §92(1) to mean:

"any state board, bureau, committee, commission, council, department, public authority, public benefit corporation, division, office or any other governmental entity performing a governmental or proprietary function for the state of New York, except the judiciary or the state legislature or any unit of local government and shall not include offices of district attorneys."

As indicated earlier, the State Finance Law characterizes HRI as a state agency. Further, HRI clearly is not an entity associated with the State Legislature or the judiciary, nor is it a unit of local government. In my view, if HRI is determined to be an agency under the Freedom of Information Law, it would constitute an agency subject to the Personal Privacy Protection Law.

Similarly, if records in possession of HRI can, in consideration of its relationship with the State Department of Health, be found to be "kept" or maintained for or on behalf of the Department, I believe that those records pertaining to a "data subject", "a natural person about whom information has been collected by an agency" [see §92(3)] that can be retrieved by means of a name or other identifier, would fall within the coverage of the Personal Privacy Protection Law. In a related vein, §94(1) requires that the Department of Health "cause the requirements of this article [the Personal Privacy Protection Law] to be applied to any contract it executes for the operation of a system of records, or for research, evaluation or reporting, by the agency or on its behalf."

In sum, I believe that HRI is subject to and required to comply with the Freedom of Information Law, and for the reasons expressed above, that it is likely that a court would determine that its records pertaining to data subjects fall within the coverage of the Personal Privacy Protection Law.

I hope that I have been of assistance.

RJF:jm

cc: Dolores M. Wilson
Donald Berens, Jr.