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FOIL-AO-16086

July 27, 2006

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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 Mr. Harberson:

I have received your inquiry in which you questioned whether "New York State universities", as well as Cornell University, are subject to the Freedom of Information Law.

In this regard, that statute 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."

Based on the foregoing, it is clear that the State University and its component institutions, as well as community colleges, constitute agencies that fall within the coverage of the Freedom of Information Law.

With respect to Cornell University, in 1999, the Court of Appeals, the state’s highest court, found that the records at issue in that case maintained by Cornell 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 the State University of New York 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.

I hope that I have been of assistance.

RJF:tt