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February 3, 1995

 

Mr. Gary Kaskel
P.O. Box 268
Gracie Station
New York, NY 10028

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 Mr. Kaskel:

I have received your letter of December 29, as well as a variety of materials relating to it. You have sought my opinion concerning two issues pertaining to the Freedom of Information Law.

First, you wrote that you were:

"denied a request for employment applications processed by the NYC Department of Health ('DOH') for a City-created not-for-profit corporation which exists exclusively by virtue of a multi-million dollar contract with the City. This entity, the Center for Animal Care and Control, Inc. ('CACC') was formed to replace the animal control duties formerly handled by the ASPCA, which declined to renew their contract with the City."

The request was denied on the ground that disclosure would constitute an unwarranted invasion of personal privacy. Nevertheless, you indicated that it is your belief that:

"the DOH personnel in charge of reviewing these applications deliberately screened out a qualified non-City employee candidate in favor of a DOH employee who eventually got the job (elevating his salary $10,000). The CACC Board member charged with making the decision claims that she never saw the application of the qualified non-City employee, and the DOH is refusing access to the applications of other possible qualified applicants."

In this regard, 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.

Second, as indicated in the responses to your request and appeal directed to DOH, an agency may withhold records insofar as disclosure would constitute an unwarranted invasion of personal privacy pursuant to §§87(2)(b) and 89(2) of the Freedom of Information Law.

In my opinion, with the exception of those who were hired, the names of applicants could properly be withheld based upon considerations of privacy. I agree with the contention expressed in response to your appeal that disclosure "would intrude on the job seeker's personal privacy" and "could be potentially embarrassing or even harmful...should present employers/supervisors learn of their job search." Even in a situation in which applicants are seeking public employment with what is clearly a government agency, the Freedom of Information Law in §89(7) specifies that the names or home addresses of applicants for appointment to public employment need not be disclosed.

I point out that §89(2)(c) of the Freedom of Information Law states that disclosure shall not be construed to constitute an unwarranted invasion of personal privacy "when identifying details are deleted." In a decision in which a court ordered that certain deletions be made [Harris v. City University of New York [114 AD 2d 805 (1985)], a professor wanted to compare his qualifications with those of other faculty members who had been promoted to full professor during the preceding five years by reviewing their curricula vitae. In determining the issue, it was held that:

"the deletion of such identifying information as names, addresses and Social Security numbers will not impede petitioner's ability to compare his credentials to those of other professional employees, yet will protect the individuals involved from an unwarranted invasion of their privacy" (id., 805-806).

As such, the court ordered the disclosure of resumés, following the deletion of the kinds of identifying details described in the passage quoted above. In the context of your request, Mr. Matthews, the DOH Appeals Officer, wrote that: "The redaction of names, addresses and telephone numbers alone, given the nature of resumes, would not suffice to adequately protect the identities of the job applications." Insofar as deletion of those or other personal details would not serve to protect the privacy of applicants, I believe that the applications or resumes may be withheld. On the other hand, following the deletion of identifying details, assuming that those deletions would serve to protect privacy, I believe that those records must be disclosed.

The second issue is whether the CACC is subject to the Freedom of Information Law. You wrote of your experience in a public interest group that acquired standing in federal court in a suit against New York City and asked whether the situation is analogous. From my perspective, the question involving the Freedom of Information Law likely has little relationship to the issue of standing; the sole question is whether CACC is an "agency".

Section 86(3) of the Freedom of Information 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 on the foregoing, an "agency" generally is an entity of state or local government. Typically, a not-for-profit corporation would not constitute an agency, for it would not be a governmental entity.

However, there is precedent indicating that in some instances 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].

In the same decision, the Court noted that:

"...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., 581).

The point made in the final sentence of the passage quoted above appears to be especially relevant, for, as I will suggest later, there may be "considerable crossover" in the activities certain persons in the performance of their duties for New York City government and the CACC.

Most recently, in Buffalo News v. Buffalo Enterprise Development Corporation (___NY 2d___, December 6, 1994), the Court of Appeals found again that a not-for-profit corporation, based on its relationship to an agency, was itself an agency subject to the Freedom of Information Law. The decision indicates that:

"The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an 'agency' only if there is substantial governmental control over its daily operations (see, e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). The Buffalo News counters by arguing that the City of Buffalo is 'inextricably involved in the core planning and execution of the agency's [BEDC] program'; thus, the BEDC is a 'governmental entity' performing a governmental function for the City of Buffalo, within the statutory definition.

"The BEDC's purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo...In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant's arguments."

The LACC appears to have a somewhat similar relationship with New York City. The third paragraph of its certificate of incorporation states in relevant part that:

"The Corporation is formed for the public and charitable purposes of providing animal care and control services in the City of New York ('the City'), thereby lessening the burdens of government on behalf of the City, and acting in the public interest and carrying out the essential public functions that relate to animal care and control..."

The fourth paragraph states that:

"The corporation is formed for the following lawful public objectives:

(1) to perform on behalf of the City or any agency of the City any functions or duties relating to animal care and control, including those for which the City or an agency of the City is authorized or permitted to contract with a not-for-profit corporation pursuant to Chapter 115 of the Laws 1894, as amended, or other applicable law, relating to animal care and control..."

Further, when the Secretary of State, as designated agent of the Corporation, upon process against it may be served is served, paragraph eleven states that the Secretary of State may mail copy of any process against the Corporation to the New York City Corporation Counsel.

The by-laws of the CACC state that the board of directors consists of five members. Three directors are ex officio: the Commissioner or Acting Commissioner of the Department of Health, the Commissioner or Acting Commissioner of the Department of Sanitation, and the Deputy Commissioner or Acting Deputy Commissioner of the Police Department in Charge of Community Affairs. The remaining two directors "shall be appointed by the Mayor of the City of New York ('the City') or the Deputy Mayor for Operations." Consequently, all of the Directors are either officers or employees of the City or are designated through the Mayor's office. Further, the by-laws state in §2.2 that:

"Any Director or Alternate Director who is an official or employee of The City of New York or any agency of The City of New York shall serve as such in the furtherance of the interests of The City of New York."

In short, a majority of CACC's directors are officials or employees of New York City government, and again, they serve "in the furtherance of the interests of the City; the others appear to serve at the pleasure of the Mayor or his deputy.

Based on the relationship between the New York City and the CACC and the judicial interpretation of the Freedom of Information Law, I believe that the CACC is an "agency" required to comply with that statute. To suggest otherwise would, in my opinion, exalt form ever substance.

Notwithstanding the foregoing, as an agency subject to the Freedom of Information Law, the CACC would not be required to disclose all of its records. As in the case of the DOH, it could withhold records or portions of records in accordance with the grounds for denial of access.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb
cc: Douglas Mansfield
Steven J. Matthews