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August 18, 1993

 

 

Mr. Frank DeFilippi
Business Agent
United Industry Workers Local 424
424 Rosevale Avenue
Lake Ronkonkoma, NY 11779-3020

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. DeFilippi:

As you are aware, your letter of July 23 addressed to Attorney
General Abrams was forwarded to the Committee on Open Government on
August 10. The Committee is authorized to provide advice
concerning the Freedom of Information Law.

By way of background, you wrote that SUNY College at
Farmingdale, "through its 'Auxiliary Service Corporation' has
contracted with Bon Appetit Management of California", and that a
number of employers "may face job loss and health care loss due to
the contractor's position". You also indicated that you requested
the following records from the College under the Freedom of
Information Law:

"1. Copy of the Request for Proposal for Food
Service, S.U.N.Y. Farmingdale.

2. Copy of the contract between S.U.N.Y.
Farmingdale and/or its Auxiliary Service
Corporation and Bon Appetit Management.

3. A list of the S.U.N.Y. Farmingdale's
Auxiliary Service Corporation members.

4. Copy of said Auxiliary Service Corporation
State Corporate Charter."

However, Dr. Samuel Taub denied the request and, according to your
letter, claimed that SUNY is not subject to the Freedom of
Information Law.

In this regard, I offer the following comments.

First, 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."

Based upon the foregoing, the State University is clearly an
"agency" required to comply with the Freedom of Information Law.
Moreover, it was held long before the enactment of the Freedom of
Information Law that the State University is an instrumentality of
the State engaged in performing a governmental function [see State
University of New York v. Syracuse University, 137 NYS 2d 916,
aff'd 285 AD 59 (1954)].

Second, §86(4) of the Freedom of Information Law defines the
term "record" broadly 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."

Therefore, insofar as SUNY College at Farmingdale maintains the
documentation in which you are interested, any such documentation
would constitute "records" subject to rights of access conferred by
the Freedom of Information Law.

Third, as a general matter, 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 (i) of the Law. Assuming
that the request for proposal relates to a contract that has been
awarded and is in possession of the College, it would appear to be
available. Similarly, the other records to which you referred, if
maintained by the College, would also be available, for none of the
grounds for denial would apply.

If the records sought are not maintained by the College but
rather by the Auxiliary Services Corporation, it is questionable
whether the Freedom of Information Law would apply to that entity.
However, if it is a not-for-profit corporation that was created to
carry out its duties for or on behalf of SUNY College at
Farmingdale, judicial decisions suggest that it may be subject to
the Freedom of Information Law. By means of analogy, the Court of
Appeals, the State's highest court has 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 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).

"True, the Legislature, in separately
delineating the powers and duties of volunteer
fire departments, for example, has nowhere
included an obligation comparable to that
spelled out in the Freedom of Information
statute (see Village Law, art 10; see, also,
39 NY Jur, Municipal Corporations, §§560-588).
But, absent a provision exempting volunteer
fire departments from the reach of article 6-and there is none-we attach no significance to
the fact that these or other particular
agencies, regular or volunteer, are not
expressly included. 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" [Westchester-Rockland Newspapers v. Kimball, 50 NY2d 575,
579 (1980)].

More recently, S.W. Pitts Hose Company et al. v. Capital
Newspapers (Supreme Court, Albany County, January 25, 1988), dealt
with the issue in terms of government control over volunteer fire
companies. In its analysis, the Court states 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
extinguishment of fires therein.
Such authorities may adopt rules and
regulations for the government and
control of such corporations.'

"These fire companies are formed by consent of
the Colonie Town Board. The Town has control
over the membership of the companies, as well
as many other aspects of their structure,
organization and operation (section 1402).
The plaintiffs' 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.

"It should be further noted that the
Legislature, in enacting FOIL, intended that
it apply in the broadest possible terms.
'...[I]t is incumbent upon the state and its
localities to extend public accountability
wherever and whenever feasible' (Public
Officers Law, section 84).

"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."

If the relationship between SUNY College at Farmingdale and the
Auxiliary Services Corporation is similar to that of a volunteer
fire company and a municipality, it would appear that the
Corporation, despite its not-for-profit status, would be an
"agency" required to comply with the Freedom of Information Law.

I point out, too, that in a decision pertaining to a
foundation associated with a public educational institution, it was
claimed that the records fell outside the scope of the Freedom of
Information Law because they were maintained by a "private, not-for-profit corporation." The records sought involved the
Kingsborough Community College Foundation; Kingsborough is an
institution of the City University of New York. In rejecting that
contention, the Court stated that:

"The activities of the Foundation...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. Even though the Foundation is set up
as a not-for-profit corporation, as it is such
an integral part of the College allowing it to
stand as a separate entity would subvert the
purpose of FOIL. I am in accord with the
petitioner in rejecting as irrelevant, for the
purposes of applying the FOIL, a distinction
as to whether the Foundation is an
independent, voluntary organization which
provides public service to an agency of local
government, rather than an 'organic arm of
government' as the vehicle for the performance
of the purposes and objectives of that agency.
(Westchester Rockland Newspapers, Inc. v.
Kimball, 50 NY2d 575 [1980]). Even if the
requested records were determined to be
private documents of the Foundation, they are
nevertheless records in the possession of a
governmental agency and as such maintained by
a governmental agency under Public Officer's
Law Section 86(3)(4). (Capital Newspapers v.
Whalen, 69 N.Y. 2d 246 (1987)].

"It is without question that the '...FOIL is
to be liberally construed and its exemptions
narrowly interpreted so that the public is
granted maximum access to the records of
government...(citations omitted) (Capital
Newspapers v. Whalen, supra, at 252). In the
instant case the respondents failed to meet
their burden of demonstrating that the
requested materials is within the bounds of
some 'specific statutory protection' and
therefore 'the Freedom of Information Law
compels disclosure not concealment'...
(Westchester News v. Kimball, supra, at 580)"
[Eisenberg v. Goldstein, Supreme Court, Kings
County, February 26, 1988].

As such, there is precedent indicating that a not-for-profit entity
associated with a public educational institution constitutes an
"agency" subject to the Freedom of Information Law.

If the Auxiliary Services Corporation exists due to its
relationship with SUNY College at Farmingdale, and if the College
would perform the functions of the Corporation if the Corporation
had not been created, it might be concluded that such an entity
conducts public business and performs a governmental function for
the University.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Dr. Samuel Taub