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FOIL-AO-14396

December 10, 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 facts presented in your correspondence, unless otherwise indicated.

Dear

I have received your letter and the materials pertaining to it concerning your request for an incident report and related documents involving an assault that occurred on November 9 on the grounds of Cornell University. The University denied access based on its contention that the University, as a general matter, is not subject to the Freedom of Information Law.

In describing the rationale for its contention, the Deputy Director of the Cornell News Service wrote that:

"Cornell’s denial of your request was based upon the well-established legal precedent that, in matters of administration of its private functions, Cornell is not an agency of government subject to the New York Freedom of Information Law. See Stoll v. New York State College of Veterinary Medicine at Cornell University, 94 N.Y.2d 162 (1999). The determinative test under Stoll is not whether the administrative activity fulfills some governmental function, but whether the activity has been delegated by statute to Cornell’s private discretion, as it has with the appointment of peace officers authorized in New York Education Law section 5709. Thus, although the county sheriff makes the actual appointments as ‘special deputy sheriffs,’ peace officers are appointed and removed at the request of Cornell from those nominees selected by the president of Cornell, and they are classified by statute as employees of Cornell throughout their periods of appointment. Their records are confidential records of the university and have been maintained that way for many years. Cornell Police incident reports and other investigative materials prepared in Cornell’s private discretion are not subject to disclosure under the New York Freedom of Information Law."

I am mindful of the decision rendered by the Court of Appeals in Stoll. However, that decision in my view did not deal with the matter at issue. In that case, a line of demarcation was drawn between records of or pertaining to Cornell’s statutory colleges, extensions of the State University, that are unique to the functions of those entities, and others that may be used or applicable on a University-wide basis. In this instance, the issue in my opinion involves Cornell University acting, in essence, as a governmental entity in carrying out statutory powers through its Police Department, and performing a governmental function. From my perspective, in consideration of a review of §§5708 and 5709 of the Education Law and other statutes, the records of the Department concerning its law enforcement functions are subject to rights of access conferred by the Freedom of Information Law. Any other conclusion would suggest that there is no accountability required of an entity that has substantial power and authority of a governmental nature over any person who enters the grounds of Cornell University and its facilities.

Subdivision (1) §5708 provides that:

"For the purpose of providing for the safety of its students, faculty, employees and visitors, Cornell university is hereby authorized and empowered through its board of trustees: a. To adopt, make applicable and enforce, upon the streets, roads and highways owned, controlled or maintained by said university within the grounds of said university and constituting a part of the educational and research plant or plants owned or under the supervision, administration, and control of said university, such provisions of the vehicle and traffic law, and such rules of the state department of transportation as control or regulate vehicular or pedestrian traffic, and parking.

b. To adopt and enforce such additional rules and regulations for the control of the use of the streets and roads described in the foregoing subdivision as local authorities are empowered to adopt and enforce pursuant to said vehicle and traffic law.

c. To adopt and enforce rules and regulations not inconsistent with law, controlling parking of vehicles and pedestrian traffic over, along and upon the lands and premises of said university or the streets and highways therein, and to control or prohibit thereon or therein vending, hawking, loitering and trespassing.

d. To erect, operate and maintain at the entrance or entrances to any such grounds and at other appropriate points thereon or therein control lights, signs and signals."

Subdivision (2) states that any violation of the Vehicle and Traffic Law or rule of the State Department of Transportation applicable through the operation of paragraph (a) of subdivision (1) "shall be a misdemeanor or traffic infraction" and that any violation under paragraph (b) "shall be....punishable as provided in the state vehicle and traffic law." Subdivision (3) provides that a violation of the rules and regulation of the University adopted under paragraph (c) "shall constitute a misdemeanor punishable by fine not exceeding fifty dollars or by imprisonment not exceeding six months, or both." Subdivision (4) requires that notice of any such rules or regulations must be made known in some manner and filed in the office of the municipality where they may be enforced.

In short, the University has the power to create and enforce laws and to punish those who violate them. I know of no entity other than a government that possesses similar authority.

Section 5709 in subdivision (1) provides that a sheriff of a county within which any part of the grounds of Cornell University is situated "shall appoint and remove at the request of Cornell university such number of special deputy sheriffs as shall be recommended" by the president of the University..." Although those special deputy sheriffs "shall be employees of the university and subject to its supervision and control", those persons "shall have the powers of peace officers as set forth in section 2.20 of the criminal procedure law..." Subdivision (2) requires that every special deputy sheriff "take and subscribe the oath of office prescribed by article thirteen" of the state constitution and file the oath with the appropriate county clerk. I note that peace officers, in this context, Cornell’s special deputy sheriffs, have the following powers pursuant to §2.20, as well as others:

"(a) The power to make warrantless arrests pursuant to §140.25 of this chapter.
(b) The power to use physical force and deadly physical force in making an arrest or preventing an escape pursuant to section 35.30 of the penal law.
(c) The power to carry out warrantless searches whenever such searches are constitutionally permissible and acting pursuant to their special duties."

Many colleges, universities, private companies and facilities such as office buildings, employ security forces or firms. Those entities do not have the kind of authority conferred upon peace officers and their personnel are not required to be deputized by a government agency or file oaths of office. They may contact law enforcement officers to make an arrest or use "deadly physical force"; I do not believe, however, that they may, on their own initiative or independently, assert authority or power of that nature. Only those with governmental authority may do so.

The Freedom of Information Law applies to agencies, and the term "agency" is defined in §86(3) 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 consideration of the statutory authority conferred upon Cornell University, which, again, includes the authority to make and enforce laws, and to impose punishment for violation of those laws, and particularly in consideration of the power and authority over the public that their special deputy sheriffs enjoy, I believe that Cornell University constitutes an "agency" insofar as its records pertain to its law enforcement functions. To that extent, Cornell University is, in my view, a governmental entity that performs a governmental function and, therefore, constitutes an "agency" required to comply with the Freedom of Information Law.

Assuming the accuracy of that conclusion, as a general matter, 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. In my opinion, rights of access to the records that you requested would be dependent on their specific contents and the effects of their disclosure, and several of the grounds for denial may be pertinent to an analysis of those rights.

Section 87(2)(b) enables an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." You indicated by phone that it is your belief that a person was arrested following the incident, but that he/she has not yet been indicted. In this regard, historically, secret arrests are rare in the United States, and there would appear to be no reason for secrecy, i.e., concern for national security, in this instance. Further, as a general matter, it has been held that the identities of those arrested are accessible, unless and until records have been sealed following the dismissal of charges in favor of the accused [see Johnson Newspaper Corp. v. Stainkamp, 61 NY2d 958 (1984); Criminal Procedure Law, §160.50]. If there has been an arrest, the identity of the person arrested, must, in my opinion, be made available. However, there may be privacy considerations pertaining to others, such as witnesses, informants and the like. There may also be an indication of the medical condition or injuries suffered by the victim. Those entries could likely be withheld on the ground that disclosure, at this juncture, would result in an unwarranted invasion of personal privacy.

As suggested in the response by the University, pertinent is §87(2)(e), which permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

Only to the extent that the harmful effects of disclosure described in subparagraphs (i) through (iv) may §87(2)(e) be properly asserted.

Also relevant is §87(2)(g), which authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

Lastly, I note that the Court of Appeals, the State’s highest court, has stressed that the Freedom of Information Law should be construed expansively. For instance, in Gould v. New York City Police Department [87 NY 2d 267 (1996)], the Court reiterated its general view of the intent of the Freedom of Information Law, stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that "complaint follow up reports" could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Simeon Moss