January 27, 2004
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.
I have received your letter of January 2 and the materials attached to it. You have requested an advisory opinion concerning the status of "chartered student organizations at colleges operated by the City University of New York (CUNY)" under the Open Meetings and Freedom of Information Laws.
You referred to §15.2 of the CUNY by-laws indicating that students may charter "organizations, associations, clubs or chapters" and wrote that "chartered organizations at the various CUNY schools include groups engaged in political, social, cultural, recreational, educational and athletic activities as well as student publications." Those groups are eligible to receive funding derived from mandatory student activity fees. Section 16.5 of the by-laws requires each college to establish a "college association" which is responsible for approving the budgets of student organizations that receive student activity fees.
As you indicated, this office has advised student governments at public colleges fall with the coverage of both the Open Meetings and Freedom of Information Laws, and it has been so held by the courts. In Schuldiner v. The City University of New York (Supreme Court, Richmond County, September 13, 1999), petitioner sought and was granted an order declaring that the College of Staten Island Association is a "public body" subject to the Open Meetings Law and an "agency" falling within the coverage of the Freedom of Information Law. The same conclusion was reached in substance in (Wallace v. City University of New York, Supreme Court, New York County, NYLJ, July 7,2000) and in relation to the applicability of the Freedom of Information Law concerning an equivalent entity operating at a branch of the State University (Stony Brook Statesman v. Associate Vice Chancellor for University Relations, Supreme Court, Ulster County, January 22, 1996).
I concur with your finding, however, that there are no decisions pertaining to the applicability of open government statutes to "chartered organizations that spend, but do not allocate, public funds such as student activity fees." As the attorney for editors of several student newspapers, you indicated that they have expressed concern that the application of those statutes "would inhibit their activities."
In this regard, I offer the following comments.
First, as you are aware, the Open Meetings Law pertains to public bodies, and §102(2) of that statute defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."
In its consideration of the language quoted above, the Court of Appeals has stated that:
"In determining whether an entity is a public body, various criteria or benchmarks are material. They include the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies...
It may be that an entity exercising only an advisory function would not qualify as a public body within the purview of the Open Meetings Law... More pertinently here, however, a formally chartered entity with officially delegated duties and organizational attributes of a substantive nature, as this Association, Inc. enjoys, should be deemed a public body that is performing a governmental function (compare, [Matter of Syracuse United Neighbors v. City of Syracuse, 80 AD2d 984, 985 appeal dismissed 55 NY2d 995).] It is invested with decision-making authority to implement its own initiatives and, as a practical matter, operates under protocols and practices where its recommendations and actions are executed unilaterally and finally, or received merely perfunctory review or approval. This Association, Inc. therefore, is manifestly not just a club or extracurricular activity." [Matter of Smith v. CUNY, 92 NY2d 707, 713-714 (1999)].
The organizations that are subjects of your inquiry are clubs or entities involved in extracurricular activities. Unlike a college association that has the authority to take final and binding action and to govern within certain limits, the organizations in question appear to lack authority of that nature. If that is so, I do not believe that they would constitute public bodies or, therefore, that they are subject to the Open Meetings Law.
Second, the scope of the Freedom of Information Law is, in my view, more expansive than the Open Meetings Law, for it pertains to all agency records. Section 86(3) defines "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."
Whether the organizations at issue constitute agencies is unclear. However, I do not believe that the status of such entities as agencies is determinative in relation to your inquiry.
Most significant in my view is the definition of "record." That term is defined in §86(4) 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".
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 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.).
In this instance, the by-laws of the CUNY Board of Trustees suggest that student organizations comprise an integral aspect of the activities at CUNY institutions. Further, according to §15.2, to exist, those organizations must file a document indicating their purposes and the identities of their officers, and in addition, the same provision states that extra-curricular activities carried out by those organizations "shall be regulated" by the student government organization. It also includes language concerning the filing of charges against a student publication in cases in which there are allegations of misconduct in a variety of contexts.
Assuming that chartered organizations operate within the campuses or buildings of a CUNY institution, their documentation would, in my opinion, constitute CUNY records. In a decision rendered by the Court of Appeals, it was found that materials maintained by a corporation providing services pursuant to a contract for a branch of the State University that were kept on behalf of the University constituted "records" falling with the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410. 417 (1995)].
Insofar as records are kept, held, produced or reproduced by a chartered club or extra-curricular organization, because such organizations would not exist but for their relationship with a CUNY institution, I believe that the records would fall within the coverage of the Freedom of Information Law. This is not to suggest that all such records would be accessible to the public, for exceptions to rights of access appear in §87(2) of that statute. In addition, I believe that access to records identifiable to a particular student or students would likely be restricted in accordance with the provisions of the Family Educational Rights and Privacy Act (20 USC §1232g).
If you would like to discuss the matter, please feel free to contact me. I hope that I have been of assistance.
Robert J. Freeman