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FOIL-AO-16726

August 8, 2007

E-MAIL

TO:

FROM: Camille S. Jobin-Davis

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

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to requests made to Cornell University Police Department for copies of complaints filed against particular officers, performance reviews concerning those officers, and statistical reports regarding complaints against the Department during the last 25 years. Cornell University denied your request on the ground that the requested documents requested cannot be characterized as financial documents relating to Cornell’s public accounting functions in the contract colleges, and thus are not subject to FOIL. Further, the University conveyed that it does not maintain most categories of documents listed in your request, and that the one category of records which the University does maintain, personnel records of police officers, would be exempt from disclosure pursuant to Civil Rights Law §50-a. In this regard, we offer the following.

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 decision, 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), and, because the records were not unique to the statutory colleges or under the direct control of SUNY, the Court concluded that the records fell 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).

The Court in Alderson further 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.).

The issue, in our opinion, then, is whether Cornell University is acting, in essence, as a governmental entity in carrying out statutory powers through its Police Department, and, therefore, performing a governmental function.

Cornell University employs and has supervision and control over “special deputy sheriffs”, defined as “police officers” pursuant to Criminal Procedure Law §1.20, with additional powers as peace officers (Education Law §5709[1]). Further, Cornell University has complete authority to adopt provisions of the Vehicle and Traffic Law and rules of the State Department of Transportation to control and regulate vehicular and pedestrian traffic, and parking (Education Law §5708), for the purpose of providing for the safety of its students, faculty, employees and visitors. We know of no other entity, other than a government, that possesses similar authority.

In consideration of such authority, we believe that 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. Records maintained by Cornell University with respect to that portion of its authority that constitutes a governmental function, based on the Alderson rationale, in our opinion would be subject to the Freedom of Information Law. To that limited extent, it is our opinion that Cornell University Police Department is a governmental entity that performs a governmental function and therefore, constitutes an “agency” required to comply with the Freedom of Information Law.

This does not mean that the records you have requested are necessarily required to be made available to you. As you may know, 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 (j) of the Law.

The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute as mentioned is §50-a of the Civil Rights Law. In brief, that statute provides that personnel records of police and correction officers that are used “to evaluate performance toward continued employment or promotion” are confidential. The Court of Appeals, the State’s highest court, in reviewing the legislative history leading to its enactment, has held that the exemption from disclosure conferred by §50-a of the Civil Rights Law "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination” [Capital Newspapers v. Burns, 67 NY2d 562, 568 (1986)]. In another decision which dealt with unsubstantiated complaints against correction officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of sensitive personnel records that could be used in litigation for purposes of harassing or embarrassing correction officers" [Prisoners' Legal Services v. NYS Department of Correctional Services, 73 NY 2d 26, 538 NYS 2d 190, 191 (1988)]. The Court in an opinion rendered in 1999 reiterated its view of §50-a, citing that decision and stating that:

“...we recognized that the decisive factor in determining whether an officer’s personnel record was exempted from FOIL disclosure under Civil Rights Law § 50-a was the potential use of the information contained therein, not the specific purpose of the particular individual requesting access, nor whether the request was actually made in contemplation of litigation.

‘Documents pertaining to misconduct or rules violations by corrections officers – which could well be used in various ways against the officers – are the very sort of record which *** was intended to be kept confidential. *** The legislative purpose underlying section 50-a *** was *** to protect the officers from the use of records *** as a means for harassment and reprisals and for the purpose of cross-examination’ (73 NY2d, at 31 [emphasis supplied])” (Daily Gazette v. City of Schenectady, 93 NY2d 145, 156-157 (1999)].

To acquire the records that fall within the coverage of §50-a, there must be a court order issued in accordance with other provisions in that statute that state that:

“2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.

3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.”

Based on the language of §50-a of the Civil Rights Law, various aspects of a personnel file pertaining to a police officer are exempt from disclosure, such as evaluations of performance, complaints and related records pertaining to allegations of misconduct. Statistical information, on the other hand, that does not identify individual police officers, created for purposes other than “to evaluate performance toward continued employment or promotion” would not be subject to that statute. In our opinion, therefore, access to statistical information in the aggregate, if it exists, would not be used for a purpose envisioned by §50-a, and, therefore, rights of access would be governed by the Freedom of Information Law.

Because the University has indicated that “most of the categories of documents listed in your request are not records that Cornell keeps in the ordinary course of business”, we note that when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.” If you consider it worthwhile to do so, you could seek such a certification.

On behalf of the Committee on Open Government, we hope this is helpful to you.


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cc: Valerie Cross