July 15, 1993

 

 

Mr. Michael Stahl
404 East 88th Street
New York, NY 10128

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. Stahl:

I have received your letter of July 6, as well as the
materials attached to it.

According to your letter:

"In 1989, La Guardia Community College and the
Research Foundation [of the City University of
New York] signed a contract with the New York
City Department of Employment in which they
received hundreds of thousands of taxpayer
dollars funded by the Jobs Training
Partnership Act."

You wrote that you are "interested in finding out how much money it
cost the United States taxpayers to place one student on a job",
for it appears that only one student was placed in "Cycle II" of a
plan described in the contract.

In this regard, I offer the following comments.

First, it is emphasized at the outset that the Freedom of
Information Law pertains to existing records of an agency. Section
89(3) of that statute states in part that an agency need not create
or prepare a record in response to a request. With respect to the
information that you seek, I am unaware of whether any agency
possesses a record or records indicating precisely "how much money
was spent" to place a single student in Cycle II. If no such
record or records exist, an agency would not be obliged to prepare
a tabulation or create a new record on your behalf.

Second, assuming that such records do exist, I point out that
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 section
87(2)(a) through (i) of the Law. Of relevance would be §87(2)(g).
Although that provision is one of the grounds for denial, due to
its structure, it often requires disclosure. Specifically,
§87(2)(g) 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, as indicated earlier, the Freedom of Information Law
is applicable to agency records, and §86(3) of the Law 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."

As such, La Guardia Community College, which is part of the City
University of New York (CUNY), and the New York City Department of
Employment would clearly constitute "agencies" required to comply
with the Freedom of Information Law. The correspondence that you
enclosed, however, includes a letter in which an attorney for the
CUNY Research Foundation expressed the belief that the Foundation
is a not-for-profit corporation and, therefore, is not subject to
the Freedom of Information Law. In this regard, although I am
unaware of the exact nature of the relationship between CUNY and
the Research Foundation, I point out that it has been held that a
foundation associated with Kingsborough Community College is an
"agency" subject to the Freedom of Information Law (see attached,
Eisenberg v. Goldstein, Supreme Court, Kings County, February 26,
1988). Similarly, this office has advised that a similar
organization associated with the State University, the SUNY
Research Foundation, is an agency required to comply with the
Freedom of Information Law (see attached).

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Catherine McGrath, Senior Associate Counsel