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FOIL-AO-17252

 

                                                                                                July 22, 2008

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

            As you are aware, I have received your letter and a variety of material relating to a request made by a reporter for the Post-Standard pursuant to the Freedom of Information Law for records relating to two arrests pertaining to Robert Washington, 40, of Philadelphia that were made on the property of Syracuse University.  While some elements of the records sought were made available, others were withheld.

            Based on a review of the material, I offer the following comments.

            First, the Freedom of Information Law is applicable to agency records.  Section 86(3) of that statute 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."

            According to the definition, as a general matter, an “agency” is an entity of state or local government.  In my view,  Syracuse University, a private institution, cannot be characterized as an “agency.”  However, as suggested by the University’s attorney in response to the request, judicial decisions indicate that “an otherwise private entity will be found to have engaged in state action only where its activities are ‘fairly attributable’ to the state, such as where the private entity willingly engages in joint activity with the government [or] is engaged in a traditionally exclusive public function....” [see e.g., Brentwood Academy v. Tennessee Secondary Schools Athletic Association, 121 S.Ct 924 (2001); Logan v. Bennington College, 72 F3d 1017 (2nd Cir. 1995), cert. den., 117 S. Ct.79 (1996)].  As you are likely aware, the Court of Appeals has considered the status of Cornell University, a so-called “hybrid” institution, in that it includes four “statutory colleges” that are in some respects under the control of the State University, as well as purely private aspects of the University, and the Court reached a somewhat similar conclusion [see Alderson v. NYS College of Life Sciences at Cornell University, 4 NY3d 225 (2003); Stoll v. NYS College of Veterinary Medicine at Cornell University, 94 NY2d 162 (1999)].

            The activities of Syracuse University that potentially bring certain areas of its functions within the scope of the Freedom of Information Law relate to its law enforcement authority.  The University’s response to your requests suggests a belief on its part that records involving its law enforcement functions are subject to rights conferred by that statute.

            Viewing the status of the records from a different perspective, again, the Freedom of Information Law pertains to all agency records, and §86(4) defines “record” 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."

            In consideration of the language quoted above, documents need not be in the physical possession of an agency to constitute agency records; so long as they are produced, kept or filed for an agency, the courts have held they constitute “agency records”, even if they are maintained apart from an agency’s premises.

            It has been found, for example, that records maintained by an attorney retained by an industrial development agency were subject to the Freedom of Information Law, even though an agency did not possess the records and the attorney’s fees were paid by applicants before the agency.  The Court determined that the fees were generated in his capacity as counsel to the agency, that the agency was his client, that "he comes under the authority of the Industrial Development Agency" and that, therefore, records of payment in his possession were subject to rights of access conferred by the Freedom of Information Law (see C.B. Smith v. County of Rensselaer, Supreme Court, Rensselaer County, May 13, 1993).

            Also significant is a decision rendered by the Court of Appeals in which it was found that materials maintained by a corporation providing services pursuant to a contract for a branch of the State University that were kept  on behalf of the University constituted "records" falling with 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. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].

            As the foregoing relates to the request, I point out that the University employs individuals who are characterized as and have the powers of peace officers.  Further, they carry out their duties essentially as agents of the government of the City of Syracuse.  Section 2.10(77)(b) of the Criminal Procedure Law states in relevant part that:

“For the protection of the grounds, buildings and property of Syracuse University, the prevention of crime and the enforcement of law and order, and for the enforcement of such rules and regulations as Syracuse University shall from time to time establish, the chief law enforcement officer of the city of Syracuse may appoint and remove, following consultations with Syracuse University; such number of Syracuse University peace officers as is determined by the chief law enforcement officer of the city of Syracuse to be necessary for the maintenance of public order at such university, such appointments to be made from persons nominated by the chancellor of Syracuse University.  Such peace officers shall comply with such requirements as shall be established by the chief law enforcement officer of the city of Syracuse...Such Syracuse University peace officers shall have the power of peace officers within the geographical area of employment of the grounds or premises owned, controlled or administrated by Syracuse University within the county of Onondaga, except in those situations when requested by the chief law enforcement officer of the city of Syracuse...”

            Paragraph of §2.10(77) specifies that Syracuse University peace officers “shall, before entering up the duties of his or her office, take and subscribe the oath of office prescribed by article thirteen of the state constitution, which oath shall be filed in the office of the county clerk...”

            In consideration of §2.10(77) of the Criminal Procedure Law, it might be contended that records of the University’s peace officers, as agents of the “chief law enforcement officer of the city of Syracuse”, are City records, for in the words of the definition of “record”, they are “kept, held, filed [and] produced” for an agency, the City of Syracuse.  Therefore, irrespective of whether the University is obliged to give effect to the Freedom of Information Law, I believe that the records involving the functions of the University’s peace officers are City records subject to rights conferred by that statute.

            If the records are City records, it is suggested that a second request could be made to the City’s records access officer.  The regulations promulgated by the Committee on Open Government, which have the force of law, state that the records access officer has the duty of coordinating an agency’s response to requests (21 NYCRR §1401.2).  In this instance, the records access officer could direct the University to disclose City records to the extent required by the Freedom of Information Law, or acquire the records to determine rights of access.

            Second, based on the assumption that the records fall in some manner within its scope, 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.

            Section §87(2)(a) pertains to records that are "specifically exempted from disclosure by state or federal statute."   A statute that exempts records from disclosure is the Family Education Rights and Privacy Act (“FERPA”; 20 U.S.C. section 1232g).  In brief, FERPA applies to all educational agencies or institutions that participate in grant programs administered by the United States Department of Education.  As such, FERPA includes within its scope virtually all public educational institutions and many private educational institutions.  The focal point of the Act is the protection of privacy of students.  It provides, in general, that any "education record," a term that is broadly defined, that is personally identifiable to a particular student or students is confidential, unless the parents of students under the age of eighteen waive their right to confidentiality, or unless a student eighteen years or over similarly waives his or her right to confidentiality.

            I note, however, the definition of “education record” specifically excludes:

"Records of a law enforcement unit of an educational agency or institution, but only if education records maintained by the agency or institution are not disclosed to the unit, and the law enforcement records are -

(i)  Maintained separately from education records;

(ii)  Maintained solely for law enforcement purposes; and

(iii)  Disclosed only to law enforcement officials of the same jurisdiction..." (34 CFR §99.3).

In addition, §99.8(b)(1) of the federal regulations states that:

"Records of a law enforcement unit means those records, files, documents, and other materials that are -

(I)  Created by a law enforcement unit;

(ii)  Created for a law enforcement purpose; and

(iii)  Maintained by the law enforcement unit."

            Based on the foregoing, insofar as the records in question could be characterized as those of a law enforcement unit, FERPA in my opinion would not serve as a basis for withholding the records.  In that case, the records would be subject to whatever rights exist under the Freedom of Information Law.

            With respect to the other exceptions to rights of access cited by the University, relevant is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would constitute “an unwarranted invasion of personal privacy.”  It has been advised that portions of records identifying witnesses or others interviewed by a law enforcement agency in relation to an incident may be withheld, unless their identities have been disclosed, i.e., by means of statements made or evidence received by a court in a judicial proceeding.  Often statements that have not become available via judicial proceedings are accessible following the deletions of names or other details identifiable to witnesses.

            I disagree with the University’s contention that disclosure of addresses where arrests occurred may be withheld on the ground that disclosure would result in an unwarranted invasion of the privacy “of those persons who reside at such addresses.”  Historically, a booking record, the record of arrest by the arresting agency, has always been public and includes the location of an arrest.  Further, the location of an event in which law enforcement personnel are involved generally is recorded in a police blotter or equivalent record, which has been found to be accessible under the Freedom of Information Law [see e.g., Sheehan v. City of Binghamton, 59 AD2d 808 (1977).  Perhaps most importantly, when a police vehicle arrives at a particular location in response to an event, its presence is not secret; the vehicle and the officers are in plain sight and can be seen by any person in the vicinity.  For those reasons, I do not believe that portions of records indicating the addresses of arrests can justifiably be withheld.

            Section 87(2)(e) may also be pertinent.  That provision authorizes 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."

            In my opinion, only to the extent that the harmful effects described in subparagraphs (i) of §87(2)(e) would there be justification for a denial of access.

            Records prepared by University peace officers would also fall within §87(2)(g), which enables 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, reference was made to your reporter’s assertion that “redaction of criminal complaints, or so-called ‘felony complaints,’ is impermissible because ‘Court documents may not be redacted.’” In short, as I understand its response, the University contended that records of a private institution need not be disclosed, even if they may be “otherwise available from courts or governmental agencies.”  Again, if the records are maintained by the University’s law enforcement unit, for reasons described earlier,  I believe that they are subject to the Freedom of Information Law.  Further, although the courts fall beyond that coverage of that law, the Court of Appeals has determined that records emanating from a court that come into the custody of an agency, i.e., the City of Syracuse, constitute “agency records” that fall within its requirements [Newsday v. Empire State Development Corp., 98 NY2d 746 (2002)].

            I hope that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Eleanor Ware
Records Access Officer, City of Syracuse