May 17, 1995

 

 

Mr. Bob Greene
c/o The Stony Brook Statesman
P.O. Box 1530
Stony Brook, NY 11790

Dear Mr. Greene:

As you are aware, pursuant to §89(4)(a) of the Freedom of
Information Law, the Acting Appeals Officer for the State
University of New York has forwarded a response to an appeal made
under the Freedom of Information Law by Thomas V. Flanagan of the
Stony Brook Statesman. You have sought an advisory opinion on the
matter.

In brief, in that response, it was stated that the Student
Polity Association ("Polity"), a not-for-profit corporation, is not
an "agency" subject to the Freedom of Information Law ("the Law").
The term "agency" is defined in §86(3) of the Law 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."

Polity, as I understand its function, serves essentially as
the student government of SUNY/Stony Brook. In carrying out that
function, it is responsible for allocating mandatory student
activity fee monies. The appeal by the Stony Brook Statesman makes
reference to a federal court decision that suggested that Polity
and similar entities are agencies or perhaps components within
agencies. Specifically, in Carroll v. Blinken [957 F.2d 991 (2d
Cir. 1992), cert. denied, 113 S.Ct. 300 (1972)], it was held that
a State University of New York student government's allocation of
mandatory activity fee monies to a particular organization
constituted a "state action." As the commentary in the appeal
pointed out, the Carroll decision indicates:

"that 'the allocation of activity fee money to
[a campus organization] NYPIRG' was a
justifiable exercise of State action. Such
allocation of funds constitutes official
action according to Carroll because the SUNY
Trustees require all SUNY students pursuant to
New York Education Law § 355 to pay a
mandatory Student Activity Fee each semester.
'Those who fail to pay the fee...are not
allowed to register.' Id. at 993. Polity's
disbursement of these assessed funds are
further mandated and controlled by state
regulation 8 N.Y.C.R.R. § 302.14. This
regulation, again, as explained in Carroll v.
Blinken, determines the manner in which the
'student association budget' may allocate
funds. Eleven permissible categories of
expenditures are defined.

"As the case explains 'once the Student
Government completes its budget' allocating
funds to various campus groups...SUNY's
President must then certify that the Student
Government funds have been spent in one of the
eleven ways recognized by the regulation.

"Thus the Polity organizations within each
SUNY campus are the direct agents of the SUNY
Trustees. And, they exercise Trustee power
delegated to the Trustees under New York's
Education Law § 355. They are therefore
clearly and inescapably state 'agencies' under
FOIL."

I agree, for Polity is, in my view, clearly involved in
performing a governmental function for, on behalf of or in
conjunction with the State University. Although Polity 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 that involved what may be characterized as an adjunct of
a public institution of higher education, 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. As
stated by the court:

"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).

As in the case of the Foundation in Eisenberg, Polity would
not exist but for its relationship with the SUNY/Stony Brook. Due
to the similarity between the situation at issue and that presented
in Eisenberg, I believe that Polity 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].

Most recently, the Court of Appeals again determined that a
certain not-for-profit corporation constituted an "agency" subject
to the Freedom of Information Law. In Buffalo News v. Buffalo
Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court
determined that:

"The BEDC, a not-for-profit local development
corporation, channels public funds into the
community and enjoys many attributes of public
entities. It should therefore be deemed an
'agency' within FOIL's reach in this case"
(id., 492).

It was also stated 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...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 to attract
investment and stimulate growth in Buffalo's
downtown and neighborhoods. As a city
development agency, it is required to publicly
disclose its annual budget. The budget is
subject to a public hearing and is submitted
with its annual audited financial statements
to the City of Buffalo for review. Moreover,
the BEDC describes itself in its financial
reports and public brochure as an 'agent' of
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" (id., 492-493).

In this instance, there is substantial government control over
Polity, for the administration at a SUNY institution is also
"inextricably involved" in the operation of a student government
organization. The regulations promulgated by SUNY, 8 NYCRR
§302.14, specify the relationship between a student government
organization, such as Polity, and SUNY. Where mandatory fees are
paid, as in this case, §302.14(c)(1) provides that:

"The representative student organization shall
prepare and approve a budget governing
expenditures from student activity fees in
accordance with the constitution and by-laws
of the student organization, and consistent
with the principles of equal opportunity,
prior to registration for each term.
Allocations included in the budget shall fall
within programs defined in paragraph (3) of
this subdivision. The approved budget shall
thereafter be presented to the chief
administrative officer prior to the
registration for each term for his review and
certification that the allocations are in
compliance with the provisions of paragraph
(3) of this subdivision. In the event that
the chief administrative officer, or his
designee, concludes that a particular proposed
allocation may not be in compliance with the
provisions of this Part, he shall refer such
proposed allocation to a campus review board
composed of eight members of whom four shall
be appointed by the representative student
organization and four appointed by the chief
administrative officer, or his designee. The
campus review board shall study the proposed
allocation and make a recommendation with
respect to it. The chief administrative
officer, or his designee, shall thereafter
make the final decision. Any proposed
allocation which is determined not be in
compliance with the provisions of these
regulations shall be excluded from the budget.
Upon determination by the chief administrative
officer, or his designee, that the approved
budget is in compliance with these
regulations, he shall so certify, and such
certification shall authorize the collection
of the fee at registration."

Paragraph (3) of subdivision (c) states that "[f]unds which are
collected under provisions of this section which require every
student to pay the prescribed mandatory fee shall be used only for
support of the following programs for the benefit of the campus
community", and thereafter identifies the kinds of programs
eligible for funding. As in Eisenberg, supra, in which it was held
that a not-for-profit foundation was an "agency", for its purpose
was to further the functions of a community college, Polity can use
monies only "for the benefit of the campus community." Similarly,
as in the case of Buffalo News, there is substantial oversight, if
not control, by the parent entity. Paragraph (4) of §302.14(c) of
the regulations states that fiscal commitments of proceeds of
student activity fees by a student organization "shall have been
approved by the chief administrative officer or his designee", that
'[f]inal determination for approval of the compliance with this
section of any fiscal commitment shall rest with the chief
administrative officer or his designee", that "[f]iscal and
accounting procedures prescribed by the chancellor...shall be
adopted and observed by the representative student organization",
and that "such procedures shall include...provisions for an annual
audit."

Lastly, even if it is contended that Polity is not an agency,
it appears that its records are kept or produced for or on behalf
of SUNY/Stony Brook. Section 86(4) of the Freedom of Information
Law 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, i.e., 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 appears to be
"considerable crossover" in the activities of Polity and SUNY/Stony
Brook, particularly in view of the regulations cited earlier.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Mary Elizabeth Walsh
Patrick J. Hunt
Thomas V. Flanagan