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September 7, 2000

FOIL-AO-12315

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 August 7, as well as the materials attached to it. Having
sought records from the School of Agriculture and Life Sciences at Cornell University
pertaining to its "research into biotechnology", you were informed that the state's highest
court "recently determined that Cornell University, in its operation of the four state supported
statutory or compact colleges (which include the College of Agriculture and Life Sciences
and its component, the Agricultural Experiment Station at Geneva), is not a state agency
subject to FOIL." You have requested "a judgment...as to whether Cornell's refusal to
provide documents is in line with the law."

In this regard, it is emphasized at the outset that the Committee on Open Government
is authorized to offer advice and opinions concerning the Freedom of Information Law; it is
not empowered to render a "judgment" that is binding. Consequently, although it is our hope
that opinions rendered by the Committee are educational and persuasive, the following
remarks should be considered advisory.

From my perspective, while the statement quoted above indicating that Cornell
University is not a state agency is accurate based on the decision to which reference was
made [Stoll v. New York State College of Veterinary Medicine at Cornell University, 94
NY2d 162 (1999)], the Court of Appeals did not determine that all records maintained by or
for Cornell fall beyond the coverage of the Freedom of Information Law.

That statute pertains to agency records, and §86(3) defines the term "agency" to
include:

"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."

In considering the scope of the term "agency" in relation to Cornell, the Court of Appeals in
Stoll indicated that SUNY is an agency, but that "[w]hether Cornell's statutory colleges also
qualify as agencies of the State for FOIL purposes is an open question" (id., 166). Although
the Court stated that "the law is settled that, for a number of purposes, the statutory colleges
are not state agencies"(id.), it was also found that "[t]he statutory colleges are, however,
subject to certain oversight by the SUNY Board of Trustees" (id., 167). The Court referred
to the "hybrid statutory character of the colleges", stating that "[a]t issue is the threshold
question whether the statutory colleges are subject to FOIL in the first place" and that "[t]his
question cannot be answered by reference to broad classifications, but rather turns on the
particular statutory character of these sui generis institutions" (id.).

The request in Stoll involved a disciplinary record relating to a member of the faculty
of one of the statutory colleges, and the Court found that discipline of employees is a
university wide function, not a function special or unique to the statutory colleges.
Specifically, it was found that:

"The principle that resolves the particular quandary here is that
the Legislature has chosen to vest Cornell–the private
institution–with discretion over the ‘maintenance of discipline'
at the four statutory colleges (see, Education Law § 5711[2]; §
5712[2]; § 5714[3]; § 5715[6]). In this respect, there is no
statutory provision for oversight by the SUNY Trustees, or for
any appeal to the SUNY Board. Consistent with that statutory
mandate, Cornell has implemented a single system for
administering discipline in the statutory colleges and in its
private colleges. Indeed, as is manifest from petitioner's own
FOIL request, there is a University-wide Campus Code of
Conduct and a Judicial Administrator to whom all such
complaints are directed. Thus, the disciplinary records of the
statutory colleges and private colleges are all held by the same
private office of the University" (id., 167-168).

That disciplinary records maintained by Cornell are not subject to the Freedom of
Information Law does not necessarily lead to the conclusion that all records of or pertaining
to the statutory colleges fall beyond the scope of that statute. On the contrary, at the
conclusion of its discussion, the majority wrote that:

"...we underscore that, by this decision and analysis, we do not
‘rule that the entire administration of the statutory colleges is
not subject to FOIL' (dissenting opn., at 169, – N.Y.S.2d at –,
723 N.E.2d at 70). We hold only that, given the unique
statutory scheme applicable here, Cornell's disciplinary records
are not subject to FOIL disclosure. Other, more public aspects
of the statutory colleges may well be subject to FOIL, but we
need not and do not reach such issues today" (id., 168).

In so stating, I believe that the Court of Appeals left the door open to a finding that some
records of or pertaining to the statutory colleges are subject to rights of access conferred by
the Freedom of Information Law, particularly in those situations in which records relate to or
involve "State direction or oversight" (id,,167).

"State direction and oversight" are described in §5712 of the Education Law
concerning the College of Agriculture and Life Sciences. Subdivision (1) states in part that
the College "shall continue to be under the supervision of the state university trustees."
Additionally, subdivision (3) provides that "[t]he state university trustees shall maintain
general supervision over the requests for appropriations, budgets, estimates and expenditures
of such college." Further, subdivision (1) of §5713 of the Education Law states in relevant
part that:

"[t]he institution known as the New York agricultural
experiment station, located in the city of Geneva, for the
purposes of promoting agriculture in its various branches by
scientific investigation and experiment...shall continue to be
controlled and managed by Cornell university under the
supervision of the state university trustees. Said station shall
be managed, controlled and administered by Cornell university,
as the representative of the state university trustees, in the
manner and with the powers provided by section fifty-seven
hundred twelve of this chapter."

"Supervision", in my view, is the equivalent of "oversight", and based on Stoll, it
appears that the Court of Appeals inferred that the functions, and therefore the records
reflective of those functions, carried out by the statutory colleges, and in this instance, the
Agricultural Experiment Station, under the supervision of the SUNY trustees, may be agency
records subject to the Freedom of Information Law. Even if a statutory college is not an
"agency", it might be concluded that records prepared by or acquired for such a college under
the direction or oversight of the SUNY trustees would constitute "agency records."
Potentially significant to an analysis of the matter is §86(4) of the Freedom of Information
Law, which 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.

In a decision rendered by the Court of Appeals, it was found that materials kept 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)].

In short, insofar as the records are maintained for an agency, such as SUNY, they
would fall within the coverage of the Freedom of Information Law.

Lastly, in another decision rendered by the state's highest court, Westchester-
Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], the Court emphasized that the
Freedom of Information Law must be construed broadly in order to achieve the goal of
government accountability, for the court found that:

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].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: James E. Hunter