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FOIL-AO-14047

May 22, 2003

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 April 24 in which you questioned the accuracy of a contention that "Cornell University is not as a general matter subject to FOIL."

In this regard, 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."

In 1999, the Court of Appeals, the state's highest court, found that the records at issue in that case maintained by Cornell University were not subject to the Freedom of Information Law (Stoll v. New York State College of Veterinary Medicine at Cornell University, 94 NY2d 162). However, 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.

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).

It was advised in an opinion rendered in 2000 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."

"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 under the supervision of the SUNY trustees, may be agency records subject to the Freedom of Information Law.

My opinion was later confirmed in Alderson v. New York State College of Agriculture and Life Sciences (Supreme Court, Tompkins County, May 18, 2001) and later affirmed unanimously by the Appellate Division (__ AD2d __. Third Dept., November 7, 2002). In that case, the issue involved records maintained by an agricultural experiment station operated by the College of Agriculture and Life Sciences, one of the statutory colleges. In reaching its conclusion, it was found that:

"...in contrast to Matter of Stoll v New York State Coll. of Veterinary Medicine at Cornell Univ. (supra), where the Legislature specifically authorized Cornell to maintain discipline for the statutory colleges as part of its administration, a 'private' activity, the legislative scheme surrounding the creation of the statutory colleges involved bears significant indicia of a public function subject to state oversight through the Commissioner of Agriculture. We, therefore, conclude that the information sought by petitioner falls within the 'more public aspects of the statutory colleges' (Matter of Stoll v New York State Coll. of Veterinary Medicine at Cornell Univ., supra, which is subject to FOIL."

In short, while many records of Cornell University fall beyond the coverage of the Freedom of Information Law, others, in accordance with the preceding analysis, are subject to rights conferred by that statute.

Next, you asked whether the "wilful destruction of records [is] a violation of the Freedom of Information Law." In this regard, records are routinely and legally destroyed; in my view, a "violation" occurs when a record is destroyed that has been requested under the Freedom of Information Law in order to prevent the applicant for the records from gaining access to it.

Section 89(8) of the Freedom of Information Law and §240.65 of the Penal Law include essentially the same language. Specifically, the latter states that:

"A person is guilty of unlawful prevention of public access to records when, with intent to prevent the public inspection of a record pursuant to article six of the public officers law, he willfully conceals or destroys any such record."

From my perspective, the preceding may be applicable in two circumstances: first, when an agency employee receives a request for a record and indicates that the agency does not maintain the record even though he or she knows that the agency does maintain the record; or second, when an agency employee destroys a record following a request for that record in order to prevent public disclosure of the record. I do not believe that §240.65 applies when an agency denies access to a record, even though the basis for the denial may be inappropriate or erroneous, when an agency cannot locate a record that must be maintained, or a record is destroyed prior to receipt of a request for that record under the Freedom of Information Law.

I note that the term "violation" is defined in §10.00(3) of the Penal Law to mean "an offense, other than a 'traffic infraction', for which a sentence to a term in excess of fifteen days cannot be imposed." Additionally, §80.05(4) of the Penal Law states that: "A sentence to pay a fine for a violation shall be a sentence to pay an amount, fixed by the court, not exceeding two hundred fifty dollars." Based on the foregoing, it appears that a person found guilty of a violation may serve up to fifteen days in jail and/or be fined up to $250.

Lastly, the only opinion prepared by this office that is addressed to you, other than this response, is attached.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman Executive Director

RJF:jm Enc.

cc: Glenn J. Applebee