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July 28, 2000

FOIL-AO-12228

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 of June 23, as well as the materials attached to it. The
attachments involve requests by your client for records pertaining to himself made under the
Freedom of Information and Personal Privacy Protection Laws. The initial request was
directed to the Research Foundation of the State University, and because that entity "ignored
his request", a second request was made to the State University (SUNY), which "referred
[your client] back to the Research Foundation." You view SUNY's response as a
constructive denial of the request and asked whether SUNY has an obligation to respond to
the request directly, rather than forwarding the request to the Research Foundation. You also
asked whether the records sought should be disclosed.

From my perspective, there are two potential responses to your initial area of inquiry.
If the Research Foundation is an "agency" subject to the Freedom of Information and
Personal Privacy Protection Laws, I believe that it would be required to respond and disclose
records to the extent required by those statutes. If it is not an agency, due to its relationship
with SUNY, its records would, in essence, be SUNY's records, and I believe that SUNY
would be required to respond. In this regard, I offer the following comments.

First, your client referred to an opinion prepared in 1988, FOIL AO-5214 (see
attached) in which it was advised that the Research Foundation is an "agency" required to
comply with the Freedom of Information Law. My opinion has not changed; if anything, it
has been bolstered by the Court of Appeals in Buffalo News v. Buffalo Enterprise
Development Corporation [84 NY 2d 488 (1994)], in which 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 in the 1988 opinion, the Research Foundation would not exist but for its
relationship with SUNY, it carries out its functions, powers and duties for SUNY, and §53-a
of the State Finance Law treats the Research Foundation as a "state agency". In
consideration of the factors reviewed in 1988 and since that time, I believe that a court would
determine that the Research Foundation is an "agency" with a responsibility to comply with
the Freedom of Information Law.

Even if that conclusion is not reached, the outcome, in terms of rights of access to
records, would be the same, for the alternative would involve a finding that the records
maintained by the Research Foundation are SUNY's records. As you are aware, §86(4) of
the Freedom of Information Law 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."

In view of the relationship between SUNY and the Research Foundation, which is described
in detail in the 1988 opinion, the breadth of the language quoted above and its judicial
interpretation [see Encore College Bookstores, Inc. v. Auxiliary Service Corporation of the
State University, 87 NY2d 410 (1995)], again, even it is determined that the Research
Foundation is not an agency, the materials sought would be SUNY's records subject to rights
of access.

It has been long established the SUNY is an "integral part" of the government of the
state and, therefore, is a state agency [see e.g., State University of New York v. Syracuse
University 285 AD 59 (1954)]. Consequently, I believe that it is subject to the Personal
Privacy Protection Law. For purposes of that statute, 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."

Based on the foregoing, if the Research Foundation is part of SUNY, its records pertaining to
"data subjects" would fall within the scope of the Personal Privacy Protection Law; if it is
independent of SUNY, it would, in my view, fall within the coverage of that statute due to its
statewide authority and functions. It is reiterated that the State Finance Law treats the
Research Foundation as a state agency.

Second, with respect to rights of access, I point out that both the Freedom of
Information Law, §89(3) and the Personal Privacy Protection Law, §95(1), require that an
applicant "reasonably describe" the records sought. The first two aspects of your client's
request involve all memoranda written or received by him as an employee of the Research
Foundation and any records involving his performance, and an issue potentially involves the
extent to which the standard in those laws has been met. It has been held by the Court of
Appeals that to deny a request on the ground that it fails to reasonably describe the records,
an agency must establish that "the descriptions were insufficient for purposes of locating and
identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its
breadth and also stated that:

"respondents have failed to supply any proof whatsoever as to
the nature - or even the existence - of their indexing system:
whether the Department's files were indexed in a manner that
would enable the identification and location of documents in
their possession (cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192 [Bazelon, J.]
[plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented
where agency's indexing system was such that 'the requested
documents could not be identified by retracing a path already
trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of
the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the
Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an
agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able
to locate the records on the basis of an inmate's name and identification number.

While I am unfamiliar with the recordkeeping systems of the Research Foundation, to
extent that the records sought can be located with reasonable effort, I believe that the request
would have met the requirement of reasonably describing the records. On the other hand, if
the records are not maintained in a manner that permits their retrieval except by reviewing
perhaps hundreds or even thousands of records individually in an effort to locate those falling
within the scope of the request, to that extent, the request would not in my opinion meet the
standard of reasonably describing the records.

Insofar as the request has reasonably described the records, I believe the Personal
Privacy Protection Law would serve as the primary source of rights of access by your client
to records pertaining to himself. In general, that statute requires that state agencies disclose
records about data subjects to those persons. A "data subject" is "any natural person about
whom personal information has been collected by an agency" [Personal Privacy Protection
Law, §92(3)]. "Personal information" is defined to mean "any information concerning a data
subject which, because of name, number, symbol, mark or other identifier, can be used to
identify that data subject" [§92(7)]. For purposes of the Personal Privacy Protection Law, the
term "record" is defined to mean "any item, collection or grouping of personal information
about a data subject which is maintained and is retrievable by use of the name or other
identifier of the data subject" [§92(9)].

Under §95 of the Personal Privacy Protection Law, a data subject has the right to
obtain from a state agency records pertaining to him or her, unless the records sought fall
within the scope of exceptions appearing in subdivisions (5), (6) or (7) of that section or §96.

To the extent that the records identify others, §96(1) of the Personal Privacy
Protection Law states that "No agency may disclose any record or personal information",
except in conjunction with a series of exceptions that follow. One of those exceptions,
§96(1)(c), involves a case in which a record is "subject to article six of this chapter [the
Freedom of Information Law], unless disclosure of such information would constitute an
unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of
section eighty-nine of this chapter". Section 89(2-a) of the Freedom of Information Law
states that "Nothing in this article shall permit disclosure which constitutes an unwarranted
invasion of personal privacy as defined in subdivision two of this section if such disclosure is
prohibited under section ninety-six of this chapter". Consequently, if a state agency cannot
disclose records pursuant to §96 of the Personal Protection Law, it is precluded from
disclosing under the Freedom of Information Law; alternatively, if disclosure of a record
would not constitute an unwarranted invasion of personal privacy and if the record is
available under the Freedom of Information Law, it may be disclosed under §96(1)(c).

The remainder of the request involves records concerning the relationship between the
Research Foundation and RWD Technologies, Inc. and includes contracts, proposals, bids,
purchase orders, invoices and the like, as well as correspondence between the Research
Foundation and RWD. Again, a possible issue involves the extent to which the request
reasonably describes the records. To the extent that it does, the Freedom of Information Law
would govern rights of access. In brief, that statute 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.

I am unaware of the nature of the records, the business in which RWD is involved, or
whether bids or awards remain under review. However, if contracts have been awarded, I
believe that they would be accessible, for none of the grounds for denial would be applicable.
Similarly, records in the nature of invoices, purchase orders and similar materials reflective
of the purchase or expenditure of public monies would be accessible.

If contracts have not yet been awarded, of potential relevance is §87(2)(c), which
permits an agency to deny access to records to the extent that disclosure "would impair
present or imminent contract awards or collective bargaining negotiations." The key word in
that provision in my opinion is "impair", and the question under that provision involves
whether or the extent to which disclosure would "impair" the contracting process by
diminishing the ability of the government to reach an optimal agreement on behalf of the
taxpayers.

As I understand its application, §87(2)(c) generally encompasses situations in which
an agency or a party to negotiations maintains records that have not been made available to
others. For example, if an agency seeking bids or proposals has received a number of bids,
but the deadline for their submission has not been reached, premature disclosure for the bids
to another possible submitter might provide that person or firm with an unfair advantage vis a
vis those who already submitted bids. Further, disclosure of the identities of bidders or the
number of bidders might enable another potential bidder to tailor his bid in a manner that
provides him with an unfair advantage in the bidding process. In such a situation, harm or
"impairment" would likely be the result, and the records could justifiably be denied.
However, after the deadline for submission of bids or proposals are available after a contract
has been awarded, and that, in view of the requirements of the Freedom of Information Law,
"the successful bidder had no reasonable expectation of not having its bid open to the public"
[Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc. 2d 951, 430
NYS 2d 196, 198 (1980)].

Depending on the nature of bids or proposals, also potentially relevant may be
§87(2)(d), the so-called "trade secret"exception. The scope and parameters of that exception
were discussed in an opinion addressed to you on October 14, 1999, and it is suggested that
you might review that opinion.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
Enc.
cc: Randy Symansky
James R. Dennehey
L. Jeffrey Perez