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October 31, 1997

 

 

Mr. Alfred Cammisa
Tracker Archaeology Services
P.O. Box 2916
North Babylon, NY 11703

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 Mr. Cammisa:

I have received your letter of September 24 in which you requested an advisory opinion
concerning the application of the Freedom of Information Law.

According to your letter, in July of this year, you requested records pertaining to "the Institute
for Long Island Archaeology", which operates and maintains its laboratory within the Anthropology
Department of SUNY/Stony Brook ("SUNY"). In response to the request, you were informed that
the Institute is part of the Research Foundation and that the Foundation is a "private corporation"
that is not subject to the Freedom of Information Law.

Attached to your letter is a description of the Institute, which indicates that it is "affiliated
with the Department of Anthropology" at SUNY. Among its goals as described in a mission
statement are:

"Train SUNY-Stony Brook students (undergraduate and graduate) in
archaeology. This training focuses on local archaeology and providing
students with the skills and experience they need to obtain
employment and research opportunities...

Provide financial support for Stony Brook students and the
Department of Anthropology."

From my perspective, the records of or pertaining to the Institute are subject to the Freedom of
Information Law. In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to records of an agency, and §86(3) of
the Law 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."

While the Research Foundation may be a not-for-profit corporation, its corporate status,
based on case law, is not determinative of whether it is an agency. In a decision in which the facts
were in many ways analogous to those that you presented. 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).

As in the case of the Foundation in Eisenberg, the Foundation, and, therefore, the Institute,
would not exist but for its relationship with SUNY. Due to the similarity between the situation you
have described and that presented in Eisenberg, as well as the goals of the Institute, I believe that the
Foundation and the Institute are 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 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].

Second, even if the Institute or the Foundation might not constitute an "agency", it appears
that their records would nonetheless fall within the coverage of the Freedom of Information Law.

It is reiterated that the Freedom of Information Law pertains to agency records, and I direct
your attention to §86(4) of the Law which defines the term "record" expansively to mean:

"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 is "considerable crossover" in the activities of SUNY and the Foundation and its
components.

In a decision involving records prepared by corporate boards furnished voluntarily to a state
agency, the Court of Appeals reversed a finding that the documents were not "records," thereby
rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in
the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v
Insurance Department, 61 NY 2d 557, 564 (1984)].

In this instance, it appears that the documents in question are physically maintained by and
in the control and custody of SUNY and its staff. If that is so, I believe that they constitute agency
(i.e., SUNY) records. Further, in view of the purposes for which the Institute was formed, which are
fully consistent with those of SUNY, it also appears that the documents in question are "kept, held,
filed [or] produced...for an agency," SUNY. If that is so, again, I believe that they would constitute
agency records.

In short, even if the Institute is not an agency, the information that you supplied suggests that
the documents at issue are kept or held by or for SUNY and, therefore, are agency records.

Also pertinent is a determination rendered by the State's highest court in which it was found
that materials received by a corporation providing services for a branch of the State University that
were kept on behalf of the University 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.

Lastly, as a general matter, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the
Law. As I understand the matter, your request involves records relating to bids that have already
been awarded. If that is so, it is unlikely in my view that nay of the grounds for denial could
justifiably be asserted.

In an effort to encourage compliance with and understanding of the Freedom of Information
Law, copies of this opinion will be forwarded to SUNY officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Gary Matthews
David J. Bernstein
Carolyn Pasley