Five years after the Honorable Patrick H. NeMoyer, J.S.C. ruled that the UB Foundation is not a public body and therefore not subject to the Freedom of Information Law, the Committee on Open Government (COOG) has issued an advisory opinion disputing that decision. Artvoice covered the case on March 31, 2011, in a story that raised eyebrows all over New York State. Click here to read it.
On Thursday, February 18, responding to a request from Manhattan-based good government group Reinvent Albany, COOG concluded that the Court’s decision was “inconsistent with judicial precedent.”
Here is the advisory opinion, with links to referenced documents:
We are in receipt of your inquiry regarding the application of the Freedom of Information Law (FOIL) to the University of Buffalo Foundation, Inc. (UB Foundation).
You include in your e-mail a copy of a response to a recent FOIL request to the UB Foundation, wherein the Foundation replied that “[b]ased on various decisions of the New York State courts, please be advised that the UB Foundation and its affiliates, including FNUB, Inc., are not subject to the FOIL.” The Committee respectfully disagrees with that conclusion.
While it is accurate that the Court in Quigley v. University at Buffalo Foundation, Supreme Court, Erie County, March 2, 2011, held that the UB Foundation is not an “agency” subject to FOIL, nor is it a “public body” subject to the Open Meetings Law, it is our opinion that this decision is inconsistent with prior judicial determinations regarding “foundations” chartered by the Regents of the State of New York created to support and promote the activities and programs of the State University of New York (SUNY) and the City University of New York (CUNY).
The Committee has rendered several opinions relating to this matter which are available on our website (See FOIL Advisory Opinions, Letter “S,” scroll down to “SUNY or CUNY Foundation.” http://www.dos.ny.gov/coog/foil_listing/fs.html
Perhaps most analogous to the situation described is a decision in which it was held that a community college foundation associated with a CUNY institution was subject to FOIL, despite its status as a not-for-profit corporation. In so holding, the Court in Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988 stated:
“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.”
In another decision relating to SUNY foundations, Siani v. The Research Foundation of the State University of New York, Supreme Court, Albany County, March 26, 2007, the Court concluded that the SUNY Research Foundation is an agency required to comply with FOIL. Specifically, the Court found that:
“The powers and duties of the Research Foundation as found in its charter are to assist in developing and increasing facilities of the State University of New York by making and encouraging gifts, grants and donations of real and personal property, to receive, hold and administer gifts, grants and to finance studies and research of benefit to and in keeping with the educational purposes and objectives of the State University.”
“Given the functional relationship between the Research Foundation and the State University, the importance of the role played by the Research Foundation in the educational efforts of the State University and the power it has with respect to sponsored programs of the State University, the Research Foundation exercises a governmental function and is therefore, subject to the provisions of the Freedom of Information Law.”
The Court in Hearst Corporation v. Research Foundation of the State of New York, Supreme Court, Albany County, September 17, 2010 followed the decision in Siani.
In a case involving SUNY and the Empire State College Foundation, Kelber v. University of the State of New York, Empire State College and Empire State College Foundation, Supreme Court, Albany County, April 14, 2010, after lengthy analysis, the Court directed Foundation to comply with FOIL and disclose records sought.
As in the case of the foundations in Siani and Eisenberg, the UB Foundation would not exist but for its relationship with SUNY Buffalo. Due to the similarity between the history (“chartered in 1962 by the Regents of the State of New York as a non-profit educational corporation in the same year in which the private University of Buffalo became part of the State University of New York (SUNY) system.” http://www.ubfoundation.buffalo.edu/about) and mission (“to support and promote the activities and programs of the University at Buffalo, State University of New York.”) of the UB Foundation and the foundations presented in Siani and Eisenberg, as well as the functions of the Foundation and its relationship to the University, I believe the Court’s decision in Quigley that the UB Foundation is not subject to FOIL is inconsistent with judicial precedent.