October 30, 2007
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.
I have received your letter and hope that you will accept my apologies for the delay in response. You have sought assistance in relation to a request made by Newsday to SUNY Stony Brook for a variety of records relating to the Stony Brook Foundation. The request was initially denied by Stony Brook’s records access officer and later affirmed following Newsday’s appeal. In short, it was concluded that “the Stony Brook Foundation should not be considered a State agency for FOIL disclosure purposes” and that “[e]xcept for agency accounts managed for the University in accordance with SUNY Policy 7000, the Foundation’s operations, function and activities are not subject to University direction or control.”
From my perspective, based on the language of the law and its judicial interpretation, the records of the Foundation fall within the coverage of the Freedom of Information Law. In this regard, I offer the following comments.
First, even if the Foundation has no independent responsibility to comply with the Freedom of Information Law, I believe that its records fall within the coverage of that statute.
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."
While the status of the Foundation as an “agency” has not been determined judicially, it is clear that the State University is an “agency” required to comply with the Freedom of Information Law.
Pertinent with respect to rights of access is §86(4), which defines the term “record” expansively to include:
"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
Based on the foregoing, the Court of Appeals found that documents maintained by a not-for-profit corporation providing services for a branch of the State University were kept on behalf of the University and constituted agency “records” falling within the coverage of the Freedom of Information Law. I point out that the Court rejected “SUNY’s contention that disclosure turns on whether the requested information is in the physical possession of the agency”, for such a view “ignores the plain language of the FOIL definition of ‘records’ as information kept or held ‘by, with or for an agency’” [ see Encore College Bookstores, Inc. v. Auxillary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410, 417 (1995)]. Therefore, if a document is produced for an agency, it constitutes an agency record, even if it is not in the physical possession of the agency. In the context of the question that you raised, irrespective of whether the Foundation is an “agency”, its records appear to be maintained for the City University. If that is so, the records would, based on Encore, constitute agency records subject to the Freedom of Information Law.
Second, while for profit or not-for-profit corporations would not in most instances be subject to the Freedom of Information Law because they are not governmental entities, there are several judicial determinations in which it was held that certain not-for-profit corporations, due to their functions and the nature of their relationship with government, are “agencies” that fall within the scope of the Freedom of Information Law.
In the first decision in which it was held that a not-for-profit corporation may be an "agency" required to comply with the Freedom of Information Law, [Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case involving access to records relating to a lottery conducted by a volunteer fire company, the Court of Appeals found that volunteer fire companies, despite their status as not-for-profit corporations, are "agencies" subject to the Freedom of Information Law. In so holding, the State’s highest court stated that:
"We begin by rejecting respondent's contention that, in applying the Freedom of Information Law, a distinction is to be made between a volunteer organization on which a local government relies for performance of an essential public service, as is true of the fire department here, and on the other hand, an organic arm of government, when that is the channel through which such services are delivered. Key is the Legislature's own unmistakably broad declaration that, '[a]s state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible' (emphasis added; Public Officers Law, §84).
For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objections cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" (id. at 579].
In the same decision, the Court noted that:
"...not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id., 581).
In Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court of Appeals found again that a not-for-profit corporation, based on its relationship to an agency, was itself an agency subject to the Freedom of Information Law. The decision indicates that:
"The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an 'agency' only if there is substantial governmental control over its daily operations (see, e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). The Buffalo News counters by arguing that the City of Buffalo is 'inextricably involved in the core planning and execution of the agency's [BEDC] program'; thus, the BEDC is a 'governmental entity' performing a governmental function for the City of Buffalo, within the statutory definition.
"The BEDC's purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo...In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant's arguments," (id., 492-493).
Perhaps most analogous to the situation described is a decision in which it was held that a community college foundation associated with a CUNY institution was subject to the Freedom of Information Law, despite its status as a not-for-profit corporation. In so holding, it was stated that:
"At issue is whether the Kingsborough Community College Foundation, Inc (hereinafter 'Foundation') comes within the definition of an 'agency' as defined in Public Officers Law §86(3) and whether the Foundation's fund collection and expenditure records are 'records' within the meaning and contemplation of Public Officers Law §86(4).
“The Foundation is a not-for-profit corporation that was formed to 'promote interest in and support of the college in the local community and among students, faculty and alumni of the college' (Respondent's Verified Answer at paragraph 17). These purposes are further amplified in the statement of 'principal objectives' in the Foundation's Certificate of Incorporation:
'1 To promote and encourage among members of the local and college community and alumni or interest in and support of Kingsborough Community College and the various educational, cultural and social activities conducted by it and serve as a medium for encouraging fuller understanding of the aims and functions of the college'.
“Furthermore, the Board of Trustees of the City University, by resolution, authorized the formation of the Foundation. The activities of the Foundation, enumerated in the Verified Petition at paragraph 11, amply demonstrate that the Foundation is providing services that are exclusively in the college's interest and essentially in the name of the College. Indeed, the Foundation would not exist but for its relationship with the College" (Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988).
As in the case of the foundation in Eisenberg, the Foundation would not exist but for its relationship with SUNY Stony Brook. Due to the similarity between the situation you have described and that presented in Eisenberg, as well as the functions of the Foundation and its relationship to the University, I believe that it is subject to the Freedom of Information Law.
I am mindful of the contention that the relationship between SUNY Stony Brook and the Foundation differs from that of another SUNY institution and the Auxiliary Services Corporation, also a not-for-profit corporation, which performs a variety of functions that institution would otherwise carry out on its own. Nevertheless, I believe that the distinction is artificial, for the Foundation would not exist but for its relationship with SUNY Stony Brook, and its records, in my view, are clearly maintained for SUNY Stony Brook. As stated on its website:
“The Stony Brook Foundation is a not-for-profit 501(c)(3) corporation established in 1965 as the official fundraising and private gift receiving agency for the State University at Stony Brook. Working closely with the Office for University Advancement, the Foundation receives gifts of cash, securities, real and personal property, and deferred gifts such as bequests, life insurance and life income agreements. The funds received by the Foundation support every aspect of university endeavor, including: research, education, public service, faculty and student development, economic and cultural development, and health care.”
Additionally, the University’s website states that “Stony Brook’s endowment [is] managed by the Stony Brook Foundation.”
In sum, while I believe that the Foundation constitutes an “agency” required to comply with the Freedom of Information Law, even if it is not characterized or found to be an agency, it is clear in my opinion that its records are maintained for SUNY Stony Brook and, therefore, fall within the definition of “record” cited earlier and the coverage of the Freedom of Information Law. As indicated above, the Foundation supports “every aspect of university endeavor.”
Lastly, when the Freedom of Information Law is applicable, it 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.
While it may be that some of the records or portions thereof requested by Newsday might properly be withheld, I disagree with the rationale offered in the determination of the appeal concerning “donor records.” It was contended that tax records submitted to the New York State Department of Taxation and Finance and the Internal Revenue Service that are exempted from disclosure by state and federal statutes remain confidential when copies are sent or made available to others, i.e., the University or the Foundation. It has been advised and determined, however, that the confidentiality statutes pertain only to the tax agencies and not to others. When a related issue arose several years ago, I contacted the Disclosure Litigation Division of the Office of Chief Counsel at the Internal Revenue Service to discuss the issue. I was informed that the statutes requiring confidentiality pertain to records received and maintained by the Internal Revenue Service; those statutes do not pertain to records kept by an individual taxpayer [see e.g., Stokwitz v. Naval Investigation Service, 831 F.2d 893 (1987)], nor are they applicable to records maintained by an employer, for example. In short, the attorney for the Internal Revenue Service said that the statutes in question require confidentiality only with respect to records that it receives from the taxpayer. The same response was offered by a representative of the State Department of Taxation and Finance. Most recently, it was determined in relation to records maintained by a state agency that administered a grant program that “the fact that...data...may be derived from tax forms or may be compiled in the same manner as the information on the tax forms does not place such data within the protection of the confidentiality provisions of the Tax Law ” (The Herald Company v. NYS Department of Economic Development, Supreme Court, Albany County, February 8, 2007).
In consideration of the foregoing, I do not believe that records involving donors are exempted from disclosure by statute, but rather that rights of access are governed by the Freedom of Information Law. That being so, in my opinion, those portions of the records that identify donors who are natural persons may be withheld on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” in accordance with §87(2)(b) of the Freedom of Information Law, for I do not believe that the public has the right to know of the nature or amount of charitable contributions an individual might choose to make. The exception concerning privacy, however, pertains to natural persons. Therefore, insofar as the donor records pertain to entities, such as corporations, in my opinion, there would be no basis for denying access.
I hope that I have been of assistance.
Robert J. Freeman
cc: Stacey Hengsterman
Karol Kain Gray