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March 25, 1998




Mr. Robert Wallace
Assistant to the Ombudsperson
The City College of the City University
of New York
Convent Avenue & 138th Street
New York, NY l0031

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. Wallace:

I have received your letter of March 6. You have questioned the
propriety of the actions of the Auxiliary Enterprise Corporation (AEC), a not-for-profit corporation associated with the City College at the City University
of New York (CUNY).

In a memorandum of February 17, Nathan Dickmeyer, Chair of AEC
and Vice President of the City College, contended that "[a]s a corporation
separate from the College, we [the AEC] are not under any open records
obligations." In addition, he wrote that an upcoming meeting of the AEC
would be closed to the public. You have sought an opinion concerning the
AEC's actions, as well as "possible remediative actions."

In this regard, the Committee on Open Government is authorized to
offer advice concerning the Freedom of Information and Open Meetings
Laws. The Committee is not empowered to compel compliance with either
of those statutes. Nevertheless, it is my hope that the opinions rendered by
this office are educational and persuasive, and that they serve to encourage
entities to carry out their duties in accordance with open government statutes
when those statutes are applicable.

In this instance, due to the means by which the AEC was created, I
believe that it is subject to both the Freedom of Information Law and the
Open Meetings Law. I am mindful of the decision rendered in Smith v. City
University of New York [661 NYS 2d 599, ___ AD 2d ___ (1997)], which
apparently has been cited by Mr. Dickmeyer as the basis for his contentions.
That decision involved the status of a student government association under
the Open Meetings Law, and I believe that it is clearly distinguishable from
the instant situation.

Among the attachments to your letter is a copy of "Notes to Financial
Statements" prepared in 1993 regarding the AEC, which states in relevant
part that:

"The City College Auxiliary Enterprises
Corporation (the Corporation) was formed in
compliance with the City University of New
York's Bylaws, Section 16.10, as adopted by
the Board of Trustees of the City University of
New York. The purpose of the Corporation is
to provide oversight, supervision and review
of all auxiliary enterprises serving the students,
faculty, administrative staff, alumni and others
in the college community of the City College
of The City University of New York.

"The Corporation was organized exclusively
for charitable, educational, or scientific
purposes..."

In addition, in Mr. Dickmeyer's memo, he referred to the by-laws of the
Corporation and its "Purposes", which include the following:

"Through the provision of auxiliary enterprise
services and the use and allocation of auxiliary
enterprise revenues, to assist in developing,
improving and increasing the programs,
resources and facilities of The City College to
enable it to provide more extensive
educational opportunities and services to its
students, faculty, administrative staff, alumni,
and others in the college community."

He also cited Article V, Section 1, concerning the authority of the President
of the College in relation to the AEC, which states that:

"The Corporation shall operate consistent with
the By-laws, policies and regulations of the
City University of New York and any policies,
regulations and orders of The City College.
The President of The City College shall have
review authority over all actions taken by the
Corporation's Board. Said review authority
shall be exercised in the manner prescribed
under Article 16 of the By-laws of the Board
of Trustees of the City University of New
York."

Based on the foregoing, it is clear that the AEC is a creation of CUNY and
the City College and that it exists for the purpose of carrying out functions for
the City College or which the College would otherwise perform itself.

There are precedents indicating that when a not-for-profit corporation
is essentially an arm of government, it falls within the scope of open
government laws, despite its corporate status.

The Freedom of Information Law pertains to agency records, and
§86(3) of that statute 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."

Based on the foregoing, an "agency" generally is an entity of state or local
government. Typically, a private entity or a not-for-profit corporation would
not constitute an agency, for it would not be a governmental entity.

In the first decision in which it was held that a not-for-profit
corporation may indeed be an "agency" required to comply with the Freedom
of Information Law, [Westchester-Rockland Newspapers v. Kimball [50 NYS
2d 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
State's highest 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 the same decision, the Court noted that:

"...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., 581).

The point made in the final sentence of the passage quoted above appears to
be especially relevant, for, in the context of the facts presented, there appear
to be "considerable crossover" in the activities of certain persons, notably Mr.
Dickmeyer, in the performance of their duties for the AEC and the College.

More recently, in Buffalo News v. Buffalo Enterprise Development
Corporation [84 NY 2d 488 (1994)], the Court of Appeals found again 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).

Perhaps most analogous to the situation described is a decision in
which it was held that a community college foundation associated with a
CUNY institution was subject to the Freedom of Information Law, despite its
status as a not-for-profit corporation. In so holding, it was stated that:

"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 Verified 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, that entity, and, in this
instance, the AEC, would not exist but for their relationship with CUNY.
Due to the similarity between the situation you have described and that
presented in Eisenberg, as well as the goals of the AEC and its relationship to
the College, I believe that it is subject to the Freedom of Information Law.

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.

In this instance, it would appear that all records kept or produced by
the AEC would be maintained for CUNY and the City College. Therefore,
I believe that its records would fall within the scope of the Freedom of
Information Law.

If the AEC is an agency that falls within the scope of the Freedom of
Information Law, I believe that its Board would constitute a "public body" for
purposes of the Open Meetings Law. Section 102(2) defines that phrase to
mean:

"...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 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."

By breaking the definition into its components, I believe that each condition
necessary to a finding that the Board of AEC is a "public body" may be met.
It is an entity for which a quorum is required pursuant to the provisions of the
Not-for-Profit Corporation Law. It consists of more than two members. In
view of the degree of governmental control exercised by and its nexus with
CUNY, I believe that it conducts public business and performs a governmental
function for a governmental entity, CUNY.

In an effort to enhance compliance with and understanding of the
Freedom of Information and Open Meetings Laws, copies of this opinion will
be forwarded to those identified at the end of your letter.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:jm

cc: President Yolanda Moses
Vice President Nathan Dickmeyer
Martha Flores, Chair, Graduate Student Council
Eduardo Hernandez, President, Student Government