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January 21, 1998

 

 

Mr. Jeff Selingo, Editorial Page Editor
The Ithacan - Ithaca College
Park School of Communications
953 Danby Road
Ithaca, N.Y. 14850-7258

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,
unless otherwise indicated.

Dear Mr. Selingo:

I have received your letter of June 2, which reached this
office on June 10.

You have sought a clarification of an opinion rendered on
January 7 of this year in which it was advised that Ithaca College
is not subject to the Freedom of Information Law. Although you
expressed general agreement with the opinion, you asked whether the
same conclusion may be reached "when some sub-entity or contracted
body of Ithaca College assumes control over some activity
traditionally within the domain of a public body, such as the
Ithaca College Office of Public Safety..." You wrote that "Ithaca
College Safety Officers are deputized by the Tompkins County
Sheriff's Office, have the authority to carry guns, power to arrest
both on and office campus, and exclusive jurisdiction over the
Ithaca College Campus." Further, it is your view that "the case of
Westchester Rockland Newspapers, Inc. v. Kimball (1980) is very
similar to the situation at Ithaca College", for it was found, in
your view, "that a private body that performed a public function"
was subject to the Freedom of Information Law.

In this regard, I have spoken with representatives of the
Tompkins County Sheriff's Department, Ithaca College and the
Division of Criminal Justice Services in order to acquire
additional information on the matter. It is true that the College
safety officers are deputized by the County Sheriff. In addition,
the officers receive municipal police training, and the Office of
Campus Safety sends statistical crime reports to the Division of
Criminal Justice Services. However, I have been informed that
municipal police training is available to individuals in both
government and private sector employment, and I do not believe that
the College safety officers could be characterized as "peace
officers" as that term is defined in §2.10 of the Criminal
Procedure. Further based upon information provided to me, it
appears that there is a "memorandum of understanding" that pertains
to the relationship between the Office of Campus Safety and the
County Sheriff's Office. Although campus safety officers may
assist the Sheriff's Department, the Department maintains virtually
no control over the Office of Campus Safety or its safety officers.

From my perspective, there are distinctions between the
situation in Westchester Rockland Newspapers [50 NY2d 575 (1980)],
and that at issue here. Volunteer fire companies, although usually
created as not-for-profit entities, would not exist but for their
contractual relationships with local governments. Ithaca College,
on the other hand, exists wholly independently of government. In
a later decision, the court focused on the degree of control that
a municipality maintains over a volunteer fire company and in its
analysis of the issue found that:

"Section 1402 of the Not-For-Profit Corporation Law is directly applicable to the
plaintiffs and pertains to how volunteer
fire companies are organized. Section 1402(e)
provides:

'...a fire corporation hereafter incorporated under this section shall be
under the control of the city, village,
fire district or town authorities having,
by law, control over the prevention or
extinguished of fires therein. Such
authorities may adopt rules and regulations
for the government and control of such
corporations.'

"These fire companies are formed by con sent of the Colonie Town Board. The Town has contro l over the membership of the companies, a s well as many other aspects of their structure, organization and oper ation (§1402). The plaintiff's contention that their relationship with the Town of Colonie is solely contractual is a mischaracterization. The municipality clearly has, by law, control over these volunteer organizations which reprovide a public function...

"This Court recognizes the long, distinguished history of
volunteer fire companies in New York State, and the vital
services they provide to many municipalities. But not to
be ignored is that their existence is inextricably linked
to, dependent on, and under the control of the municipalities for which they provide an essential public service." (S.W. Pitts Hose Company v. Capital Newspapers,
Supreme Court, Albany County, January 25, 1988).

Based upon the foregoing, a volunteer fire company, by law,
performs its duties for a municipality and is essentially an
extension of government. Neither Ithaca College nor its Office of
Campus Safety, as I understand its functions and relationship with
Tompkins County, would have any statutory connections with the
County in terms of law enforcement activities. Moreover, the
County apparently does not exercise control over the Office of
Campus Safety. As such, the facts present in the decision relating
to volunteer fire companies are in my view distinguishable from
those present here.

Lastly, it is reiterated that the Freedom of Information Law
pertains to agency records and that §86(3) of the Law defines
"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."

The Office of Public Safety in my opinion is not a state or
municipal or other governmental entity. If that is so, the Freedom
of Information Law would be applicable as a vehicle for seeking its
records.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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