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April 26, 2000

FOIL-AO-12072

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

As you are aware, I have received your letters of March 22 and March 27, and a variety
of related materials.

You have sought an advisory opinion concerning the propriety of a denial of access to
records by the Hudson Valley Community College Faculty Student Association (FSA).
Specifically, you requested "invoices for textbooks purchased from publishing companies for
sale as new texts in the FSA Bookstore for the Spring 2000 semester." Citing the "Encore
Books" case and §87(2)(d) of the Freedom of Information Law, the FSA denied the request.
You indicated that the "FSA runs the bookstore on college property; they don't have a
commercial agreement with any bookseller to run the store for them or act as their agent in the
sale of texts."

While I would agree that the "Encore Books" decision is relevant to an analysis of rights
of access, due to dissimilar facts, the outcome must, in my view, be different. In this regard, I
offer the following comments.

First, with respect to the FSA, 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."

Based on the foregoing, in general, an "agency" is a governmental entity.

Nevertheless, based on judicial decisions, even if the FSA is a not-for-profit corporation
that contracts with the College, it is an "agency" required to comply with the Freedom of
Information Law (see Stony Brook Statesman v. Associate Vice Chancellor for University
Relations et.al, Supreme Court, Ulster County, January 26, 1996). Additionally, in a decision
that involved what may be characterized as an adjunct of a public institution of higher education,
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. As stated by the court:

"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, FSA would not exist but for its
relationship with the SUNY/Stony Brook. Due to the similarity between the situation at issue
and that presented in Eisenberg, I believe that FSA and its records are subject to the Freedom of
Information Law. To suggest otherwise would, in my opinion, exalt form over substance.

Moreover, 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].

The Court of Appeals again determined that a certain not-for-profit corporation
constituted an "agency" subject to the Freedom of Information Law. In Buffalo News v. Buffalo
Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court determined that:

"The BEDC, a not-for-profit local development corporation,
channels public funds into the community and enjoys many
attributes of public entities. It should therefore be deemed an
'agency' within FOIL's reach in this case" (id., 492).

It was also stated 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...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 to attract investment
and stimulate growth in Buffalo's downtown and neighborhoods.
As a city development agency, it is required to publicly disclose
its annual budget. The budget is subject to a public hearing and
is submitted with its annual audited financial statements to the
City of Buffalo for review. Moreover, the BEDC describes itself
in its financial reports and public brochure as an 'agent' of 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).

Second, if the FSA could not be characterized as an "agency", due to its relationship with
the College, the invoices would be College records subject to rights of access conferred by the
Freedom of Information Law. That statute pertains to all agency records, such as those involving
community colleges, and §86(4) of that statute 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."

Based upon the language quoted above, documents need not be in the physical possession of an
agency to constitute agency records; so long as they are produced, kept or filed for an agency,
the courts have held they constitute "agency records", even if they are maintained apart from an
agency's premises.

For instance, it has been found that records maintained by an attorney retained by an
industrial development agency were subject to the Freedom of Information Law, even though
an agency did not possess the records and the attorney's fees were paid by applicants before the
agency. The Court determined that the fees were generated in his capacity as counsel to the
agency, that the agency was his client, that "he comes under the authority of the Industrial
Development Agency" and that, therefore, records of payment in his possession were subject to
rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of
Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

Additionally, in a decision cited in the materials that was rendered by the Court of
Appeals, the state's highest court, it was found that documentation 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, insofar as the records sought are maintained for the College, I believe that the
College is required to direct the custodian of the records to disclose them in accordance with the
Freedom of Information Law, or obtain them in order to disclose them to you to the extent
required by law.

Third, in Encore, the Auxiliary Services Corporation (ASC) operated a campus bookstore
for a branch of the State University pursuant to a contract, and, again, its records were found to
be records of the State University and, therefore, subject to the Freedom of Information Law.
Barnes & Noble was awarded a contract to stock course books designated by the faculty, and
"[i]n order to ensure that the bookstore had a complete inventory of the textbooks needed for the
upcoming semester, Barnes & Noble sent each faculty member a purchase order form on which
they listed the desired books" (id., 415). The forms were returned to Barnes & Noble, and copies
were sent to ASC. Encore requested the lists furnished to the University by Barnes & Noble, for
it operated a bookstore near the campus.

Although the Court found that the booklists maintained by ASC were State University
records subject to rights conferred by the Freedom of Information Law, it determined that they
could be withheld under §87(2)(d) of that statute. That provision enables an agency to withhold
records that:

"are trade secrets or are submitted to an agency by a commercial
enterprise or derived from information obtained from a
commercial enterprise and which if disclosed would cause
substantial injury to the competitive position of the subject
enterprise;"

The Court adopted the "substantial competitive harm" test enunciated by federal courts in
interpreting the federal Freedom of Information Act and found that the proper assertion of
§87(2)(d) "turns on the commercial value of the requested information to competitors and the
cost of acquiring it through other means" (id., 420).

If you requested the booklists that a private company, like Barnes & Noble, had
developed through a substantial expenditure of time, effort and resources, I believe that a denial
of access would be fully appropriate and consistent with law and the holding in Encore.
However, if your assertion is accurate, that there is no "commercial bookseller" with which the
FSA or the College has contracted to collect information and run the bookstore, the basis for a
denial of access in Encore would be irrelevant; no commercial enterprise would be involved and,
therefore, there would be no possibility that disclosure would "cause substantial injury to the
competitive position" of any entity.

Lastly, 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.
From my perspective, neither §87(2)(d) nor any other ground for denial could justifiably be
asserted to withhold any aspect of the invoices.

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

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John Buono, President
Anne Carozza
Willie Hammett