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 FOIL-AO-15402

July 29, 2005

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.

Dear

I have received your letter and apologize for the delay in response.

You wrote that you serve as editor in chief of the Daily Orange, the student run newspaper at Syracuse University and the SUNY College of Environmental Science and Forestry (ESF). The University’s student association (the SA) has contended that it is not a "public agency" and therefore is not subject to either the Freedom of Information or Open Meetings Laws. You wrote that:

"The question of the SA’s status stems from the fact that it represents the students of Syracuse University, a private institution, and SUNY-ESF, a public institution. The two schools are inextricably linked; their campuses are adjacent, and their students can live in the same residence halls and take the same classes. As part of this relationship, SU and SUNY-ESF students pay a mandatory activity fee--for ESF students, $36 per year goes directly to SU. The sum of the activity fees in then divided among student groups by the Student Association.

"There is no question that the Student Association received money from the mandatory fee paid by SUNY-ESF students, and the SA constitution makes clear that the organization represents all the matriculated undergraduates enrolled in both schools. Even the organizations official name, the ‘SU and SUNY-ESF Student Association,’ shows the SA’s attachment to the public institution."

In this regard, as you may be aware, it has been held that student government organizations at colleges within the SUNY and City University of New York systems are subject to both the Freedom of Information Law and Open Meetings Law [see e.g., Smith v. CUNY, 92 NY2d 707 (1999); Wallace v. City University of New York, Supreme Court, New York County, NYLJ, July7; 2000; Stony Brook Statesman v. Associate Vice Chancellor for University Relations, Supreme Court, Ulster County, January 22, 1996]. In each of those instances, the organizations were associated with wholly governmental entities. More analogous to the situation that you described is Cornell University. Many of the institutions within the University are private, but in addition, there are four "statutory" colleges that are in some respects extensions of the State University. The Court of Appeals, the state’s highest court, has twice considered the status of Cornell under the Freedom of Information Law.

In the first, Stoll v. NYS College of Veterinary Medicine [94 NY2d 162 (1999)], the request involved records of complaints brought under the University’s Campus Code of Conduct relating to any administrator, professor or student of any statutory college. Because "the Legislature has chosen to vest Cornell – with discretion over the ‘maintenance of discipline’ at the four statutory colleges....there is no statutory provision for oversight by the SUNY Trustees, or for any appeal to the SUNY Board...[and] the disciplinary records of the statutory colleges and the private colleges are all held by the same private office of the University" (id., 167-168). That being so, because the records were not unique to the statutory colleges or under the direct control of SUNY, the Court concluded that the records fall beyond the scope of the Freedom of Information Law.

The second decision, Alderson v. NYS College of Agriculture and Life Sciences [4 NY3d 225 (2005)], involved a request for records relating to research and other activities conducted by a unit of one of the statutory colleges, and the Court asserted that "the proper inquiry is whether the documents requested under FOIL relate to an activity over which Cornell, as manager of the statutory colleges, exercises autonomy and control" (id., 232). In finding that it does, it was determined that:

"Neither the SUNY trustees nor any other state agency participate in decisions relating to prospective or ongoing research pursuits. Because Cornell is vested by statute with broad authority over ‘all matters pertaining to....educational policies, activities and operations, including research work’ at CALS and the Agricultural Experiment Station, documents relating to those activities involve a private function and are therefore not subject to FOIL" (id.,232-233).

In those instances in which, to use your words, Syracuse University and ESF are "inextricably linked", records relating to those functions would, according to the Court of Appeals, be beyond the coverage of the Freedom of Information Law.

I note that the Court in Alderson determined that Cornell is "subject to certain financial reporting requirements to allow state officials to track the expenditure of state funds" and that [t]o the extent that Cornell is accountable for the expenditure of public funds, it is performing a public function"(id., 233). When that is so, it was found that records "relating to this activity are subject to FOIL" (id.). In like manner, §6005 concerning SUNY-ESF states that:

"The state university trustees shall maintain general supervision over the requests for appropriations, budget, estimates and expenditures of such college. All moneys received from state appropriations for such college shall be expended upon vouchers approved by the chancellor of the state university, as the chief administrative officer of the state university, or by such authority or authorities in the state university as shall be designated by the chancellor by a rule or written direction filed with the comptroller, when and in the manner authorized by the state university trustees."

The records of the Student Association do not appear to distinguish between student of Syracuse University and SUNY-ESF. If that is so, I do not believe that the Freedom of Information Law would apply. However, those prepared to comply with §6005 of the Education Law would appear to fall within the scope of that law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF;tt