July 29, 1994
Ms. Lauren Victoria Burke
1717 DeSales Street NW
Washington, DC 20036
Ms. Suzanne M. Konopka
61 Maine Avenue Apt. F5
Rockville Centre, NY 11570
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, unless otherwise indicated.
Dear Ms. Burke & Ms. Konopka:
I received correspondence from both of you on July 21 concerning access to records of or relating to the Suffolk Community College Association, Inc ("the Association").
As I understand the situation, Ms. Konopka requested materials in the nature of ledgers, books of account, cancelled checks and similar records of expenditures concerning the purchase of computer equipment that has been used by the Western Student Press, a student publication at Suffolk Community College ("the College"). In a response to the request, Steven F. Schrier, the College's Vice President for Management and Planning, wrote that "[t]he records that you have been requesting are records of" the Association, "a not-for-profit corporation", and that "[t]his entity is not subject to the New York State open records law". Despite that contention, he indicated that efforts would be made to produce the records. Further, in a letter to Ms. Konopka, Mr. Schrier wrote that:
"You have indicated to me that you are attempting to determine which accounts were charged with the purchase of computer equipment that has been used by the Western Student Press. I have informed you that which accounts were charged is irrelevant in determining ownership. All equipment purchased with College fee revenue is owned by the Suffolk Community College Association, Inc. How that equipment is assigned and deployed is a policy issue that should be resolved by the Dean of Students."
You have asked whether, in my view, the Association is subject to the Freedom of Information Law. Based upon the following analysis of the statute and its judicial interpretation, I believe that it is. Moreover, even if that conclusion could not be reached, I believe that the records sought would fall within the scope of the Freedom of Information Law. In this regard, I offer the following comments.
First, the Freedom of Information Law is applicable to records of an agency, 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."
It is clear in my opinion that the College is an "agency" subject to the Freedom of Information Law. According to the Education Law, §6301, community colleges are established and operated by one or more entities of local government (i.e., Suffolk County), and it was held prior to the enactment of the Freedom of Information Law that records of a community college were required to be made available pursuant to §51 of the General Municipal Law, which pertains to the duty of municipal governments to disclose records [see Cline v Board of Trustees, 351 NYS 2d 81, affirmed 45 AD 2d 823 (1973)]. More recently, in 1993, the State's highest court, the Court of Appeals, confirmed that a community college is subject to the Freedom of Information Law. In its discussion of the matter, the Court:
"reject[ed] the position of the intervenor-respondent Nassau Community College Federation of Teachers that the College is not an 'agency' within the scope of FOIL when it engages in its education function. Public Officers Law §86(3) defines an 'agency' as 'any * * * governmental entity performing a governmental or proprietary function'. Intervenor claims that the doctrine of academic abstention' and statutory construction compel the conclusion that the Legislature did not intend to extend FOIL's definition of an agency to a college's faculty committees and academic components when they perform education functions. To the extent that intervenor's argument is an invitation for us to delineate distinctions between the parameters of educational, proprietary and governmental functions, we decline to do so. We do hold that for the purposes of petitioner's FOIL inquiry, this public College constitutes an 'agency'. Nothing in the statute or legislative history requires a contrary holding, and the statutory language should be interpreted consistent with its natural and most obvious meaning" (Russo v. Nassau Community College, 81 NY 2d 690, 698).
While the Association may be a not-for-profit corporation, its corporate status, based on case law, is not determinative of whether it is an agency. In a decision in which the facts were in many ways analogous to those that you presented. It was held that a community college foundation, also a not-for-profit corporation, and its records are subject to the Freedom of Information Law in conjunction with the following:
"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 Vertified 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).
In an effort to know of its purposes, I have obtained a copy of the Association's certificate of incorporation. It's "principle objectives" relative to the College are analogous to if not virtually the same as those of the Foundation at issue in Eisenberg relative to Kingsborough Community College. Specifically, that document states that the purposes for which the Association was formed are:
"1 To supplement, advance, enrich, operate and conduct in furtherance of the educational, research, social, cultural, recreational, welfare, living and financial facilities, activities and services for the students, community, alumni, faculty and staff of the Community College operated by the Board of Trustees of the Suffolk County Community College now known as Suffolk Community College, or any other institution of higher education, which may succeed Suffolk Community College, now located at Lake Ronkonkoma, New York, in any manner not inconsistent with law.
2 To promote and cultivate educational, social, cultural, and recreational relations among the students, community, alumni and faculty of the Community College operated by the Board of Trustees of the Suffolk County Community College now known as Suffolk Community College, and to aid the students, alumni, faculty and staff of such college by assisting them in every way possible in their study, work, living and extracurricular activities.
3 To receive property or funds through gifts or bequests, to buy, sell, rent and hold property, all for the purposes above set forth".
As in the case of the Foundation in Eisenberg, the Association would not exist but for its relationship with the College. Due to the similarity between the situation you have described and that presented in Eisenberg, I believe that the Association and its records are subject to the Freedom of Information Law. To suggest otherwise would, in my opinion, exalt form over substance.
Moreover, there is precedent indicating in other instances that a not-for-profit corporation may indeed be an "agency" required to comply with the Freedom of Information Law. In 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 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].
Second, while I believe that the Association is an agency, that contention is not necessarily relevant to or determinative of rights of access to the records in question. As indicated previously, Mr. Schrier wrote that the assignment and deployment of equipment and which accounts are charged with the purchase of the equipment "is a policy issue that should be resolved by the Dean of Students". As I understand his statement, the inference is that the equipment and records relating to them, in terms of purchase and use, are in the custody and control of the College. Further, it appears that staff, offices and equipment purchased or used by the Association are physically housed in College facilities.
At this juncture, it is reiterated that the Freedom of Information Law pertains to agency records, and I direct your attention to §86(4) of the Law which defines the term "record" expansively to mean:
"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".
The Court of Appeals has construed the definition as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved a case cited earlier concerning documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, ie, fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" (see Westchester Rockland, supra, 581) and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:
"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For 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.).
The point made in the final sentence of the passage quoted above appears to be especially relevant, for there may be "considerable crossover" in the activities of the College and Association.
In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v Insurance Department, 61 NY 2d 557, 564 (1984)].
In this instance, it appears that the documents in question are physically maintained by and in the control and custody of the College and its staff. If that is so, I believe that they constitute agency (i.e., the College) records. Further, in view of the purposes for which the Association was formed, which are fully consistent with those of the College, it also appears that the documents in question are "kept, held, filed [or] produced...for an agency," the College. If that is so, again, I believe that they would constitute agency records.
In short, even if the Association is not an agency, the information that you supplied suggests that the documents at issue are kept or held by or for the College and, therefore, are agency records.
Third, in terms of rights of access, 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. In my opinion, books of account, ledgers and similar records would be available, for none of the grounds for denial would be applicable.
Lastly, §89(3) of the Freedom of Information Law states in part that an applicant must "reasonably describe" the records sought. In considering that standard, the Court of Appeals has found that requested records need not be "specifically designated", that to meet the standard, the terms of a request must be adequate to enable the agency to locate the records, and that an agency must "establish that 'the descriptions were insufficient for purposes of locating and identifying the documents sought'before denying a FOIL request for reasons of overbreadth" [Konigsberg v Coughlin, 68 NY 2d 245, 249 (1986)].
Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:
"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf National Cable Tel Assn v Federal Communications Commn, 479 F2d 183, 192 [Bazelon, J] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency']" (id, at 250).
In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping systems. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number In this instance, I am unaware of the means by which the records sought are maintained. Insofar as staff is able to locate them in conjunction with its filing or record-keeping systems, whether they are manual or electronic, a request would "reasonably describe" the records.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Steven F Schrier