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OML-AO-4130

 

February 6, 2006

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

I have received your letter of January 4 in which you sought an advisory opinion by raising the following questions:

"•Are SUNY College foundations subject to the provisions of both FOIL and OML?

•If the foundations are subject to OML, are they also required to post their meeting schedules and provide them to the media?

•If the foundations are subject to FOIL, where should FOIL applications be directed? Is it the responsibility of the campus records access officer to arrange for records or does the responsibility rest with the related foundation.

•Relative to the foundation compliance with FOIL and OML, in an Article 78 Proceeding, who are the named respondents? Would it by SUNY Farmingdale alone or would both entities be named in the action?"

In this regard, first, I believe that the records of SUNY college foundations fall within the requirements of the Freedom of Information Law, irrespective of whether a foundation has an independent responsibility to comply with that statute.

The Freedom of Information Law is applicable to agency records, and §86(3) 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."

While the status of a SUNY college foundation has not been the subject of any judicial decision, it is clear that the State University is an "agency" required to comply with the Freedom of Information Law. As indicated later in this response, it has been determined that a foundation associated with CUNY is subject to the Freedom of Information Law.

Pertinent with respect to rights of access is §86(4), which defines the term "record" expansively 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."

Based on the foregoing, the Court of Appeals, the state’s highest court, found that documents maintained by a not-for-profit corporation providing services for a branch of the State University were kept on behalf of the University and constituted agency "records" falling within 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. Auxillary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410, 417 (1995)]. Therefore, if a document is produced for an agency, it constitutes an agency record, even if it is not in the physical possession of the agency. In the context of the question that you raised, irrespective of whether the SUNY college foundation is an "agency", its records appear to be maintained for SUNY. If that is so, its records would, based on Encore, constitute agency records subject to the Freedom of Information Law.

Second, while profit or not-for-profit corporations would not in most instances be subject to the Freedom of Information Law because they are not governmental entities, there are several judicial determinations in which it was held that certain not-for-profit corporations, due to their functions and the nature of their relationship with government, are "agencies" that fall within the scope of the Freedom of Information Law.

In the first decision in which it was held that a not-for-profit corporation may be an "agency" required to comply with the Freedom of Information Law, [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 State’s highest 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).

In Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (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," (id., 492-493).

As inferred earlier, perhaps most analogous to the issue described is a decision in which it was held that a community college foundation associated with a CUNY institution was subject to the Freedom of Information Law, despite its status as a not-for-profit corporation. In so holding, it was stated that:

"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 Verified 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, that entity, and, in this instance, a SUNY college foundation, would not exist but for its relationships with SUNY. Due to the similarity between the issue you have raised and that presented in Eisenberg, as well as the functions of the foundations and their relationship to the University, I believe that they are subject to the Freedom of Information Law.

I believe that the direction provided by a SUNY "policy item" entitled "Campus-related Foundation Guidelines" can be cited to reach the same conclusion. In its summary of the functions of campus-related foundations, the policy states that:

"As part of a coordinated fundraising effort led by the campus president, each campus-related foundation (foundation) supports the fundraising efforts of the campus. The foundation and the State University of New York provide the campus with mechanisms to receive and manage gifts and make these resources available to the campus to support approved campus programs and activities. The foundation is also the primary entity that manages real property and other assets not managed by the campus. Foundations play an important role with activities and functions no specifically vested with the campus or other entities on campus."

The policy states that "The charter or certificate of incorporation of the foundation should relate to the University campus it will benefit in terms of purposes, objectives and programs."

As in the Eisenberg decision, based on SUNY policy, it is clear that a SUNY foundation exists and maintains its records solely for the SUNY campus to which it relates.

In sum, to reiterate, I believe records of a SUNY college foundation fall within the coverage of the Freedom of Information Law either because they are maintained for SUNY, or because those foundations are "agencies" that have an independent obligation to give effect to that statute.

If it is contended that a SUNY college foundation’s records are kept for SUNY, but that a foundation is not an "agency", it is recommended that a request for records of a given foundation be made to the records access officer at the SUNY college with which the foundation is associated. The records access officer has the duty of coordinating an agency’s response to requests for records (see 21 NYCRR §1401.2), and I believe that a records access officer has been designated at each SUNY college.

Next with respect to the application of the Open Meetings Law, that statute is applicable to meetings of 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."

By breaking the definition into components, I believe that each condition necessary to a finding that the board of a SUNY college foundation is a "public body" may be met. It is an entity for which a quorum is required pursuant to the provisions of the Not-for-Profit Corporation Law. It consists of more than two members. In view of the degree of governmental control exercised by and its nexus with the State University, I believe that it conducts public business and performs a governmental function for a governmental entity.

In Smith v. City University of New York [92 NY2d 707 (1999)], the Court of Appeals held that a student government association carried out various governmental functions on behalf of CUNY and, therefore, that its governing body is subject to the Open Meetings Law. In its consideration of the matter, the Court found that:

"in determining whether the entity is a public body, various criteria or benchmarks are material. They include the authority under which the entity is 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" (id., 713).

In consideration of those criteria and applying them to the matter at hand, a SUNY college foundation would not exist but for its relationship with the University; it carries out a variety of functions that the University would otherwise perform; the University has substantial control over a foundation board in the terms of membership, for the description of the composition of such a board indicates that a majority of its members are officials of or chosen by SUNY
.
Based on the foregoing, I believe that the governing bodies of SUNY college foundations are "public bodies" required to comply with the Open Meetings Law.

If that is so, those entities are required to provide notice of their meetings in accordance with §104 of the Open Meetings Law. That provision states that:

"1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.

2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require publication as a legal notice."

Lastly, you asked "who...the named respondents" would be in an Article 78 proceeding initiated to compel compliance with the Freedom of Information Law or the Open Meetings Law. In this regard, the advisory jurisdiction of the Committee on Open Government is limited, and this office does not have the authority to advise with respect to Article 78.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Stacey Hengsterman
Wendy Kowalczyk