September 3, 1996



Mr. Peter A. Reese
49 Starin Avenue
Buffalo, NY 14214

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, unless otherwise indicated.

Dear Mr. Reese:

As you are aware, I have received your letter of July 25. Please accept my apologies for the delay in response.

You have sought an advisory opinion concerning the Roswell Park Alliance Foundation ("the Foundation") and whether it is subject to the requirements of the Freedom of Information Law. Alternatively, you asked whether records of the Foundation must be made available indirectly through the Roswell Park Cancer Institute ("the Institute").

By way of background, the Institute is clearly required to comply with the Freedom of Information Law. As you pointed out, various provisions of the Public Health Law, particularly §2420, specify that the Institute is "under the management and control of the Department." The Foundation is a not-for-profit corporation and, therefore, the initial question is whether it is an "agency" as defined by the Freedom of Information Law. Section 86(3) of that statute 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, in general, the Freedom of Information Law includes entities of state and local government within its coverage; only in rare instances would not-for-profit corporations be subject to the Freedom of Information Law.

Those rare instances involve situations in which certain not-for-profit entities perform what traditionally have been viewed as governmental functions and have statutory relationships with government agencies [i.e., see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575 (1980)] or where there is a significant nexus between a government agency and a not-for-profit entity and in which the government agency maintains a significant degree of control over the not-for-profit entity [i.e., see Buffalo News, Inc. v. Buffalo Enterprise Development Corporation, 84 NY 2d 488 (1994)].

Having acquired information pertinent to the matter from both the Foundation and the State Department of Health, it does not appear that the elements needed to conclude that the Foundation, is an agency are present.

It is my understanding that the Attorney General has determined that the Foundation is a private entity; its employees are paid by the Foundation not by the Institute or the Department of Health; it employs its own attorneys and, like all not-for-profit corporations in New York, the Foundation is subject to oversight and filing requirements imposed by the Office of the Attorney General, not the Department of Health. I am mindful of the decision rendered by the Court of Appeals in Buffalo News. Nevertheless, in that case a not-for-profit corporation, the Buffalo Enterprise Development Corporation ("the Corporation"), was created by the City of Buffalo. Further, several City employees serve as members of the Corporation's Board of Directors. In addition, the Corporation's budget is subject to a public hearing. In short, the Corporation is and was found to be essentially an extension of the government of the City of Buffalo.

In the case of the Foundation, it is true that the President of the Institute serves on the Foundation's Board of Directors. However, other than that person, the Foundation's Board includes no state employees. Further, in terms of its creation, I have received a copy of a portion of a publication prepared by the co-chairs of the Foundation in which they described an incident in their lives in 1989 involving a family member was treated at the Institute. They wrote that:

"The Roswell Park Alliance was born of our belief that Roswell Park is an irreplaceable asset to our community - indeed to the world - and that community support is essential if the Institute is to provide the best in cancer care, research and education.

"On February 20, 1990, the first meeting of the Roswell Park Alliance convened. Fifty-five men and women were invited to serve as founding members and 50 said 'yes.' Little did we know that morning that the collective accomplishments of these dynamic, committed, caring and resourceful individuals would exceed even our lofty expectations...

"Alliance members come from all walks of life, hold different world views, march to the beat of different drummers. But together we have made - and continue to make - today and tomorrow more promising for cancer patients. The common thread - to make a difference - that unites the Alliance membership is reinforced every day a cancer patient is admitted to Roswell Park."

In short, the Foundation is the creation of private citizens who collectively sought to support the Institute. Again, clearly distinguishable is the Corporation, which was created by government, not by private citizens.

In a related vein, you suggested that the Foundation "was formed to avoid restrictions on solicitation of funds by state agencies." While some kinds of solicitations, notably those of a political nature, are prohibited in state facilities, I believe that there is no restriction with respect to solicitation of charitable contributions. Consequently, your contention regarding the reason for creating the Foundation appears to be erroneous.

I am also aware that the Foundation maintains its offices within the physical confines of the Institute. However, I have been informed that it pays for space and ancillary overhead costs, such as lighting and the use of office equipment.

The alternative question, whether records of the Foundation must be made available indirectly through the Institute, involves similar kinds of considerations. The issue in the context of that question is whether the records of the Foundation are Institute records. In this regard, §86(4) of the Freedom of Information Law defines the term "record" 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."

In a recent decision rendered by the Court of Appeals, it was found that even though certain records were not in the physical custody of an agency, they fell nonetheless within the coverage of the Freedom of Information Law [Encore College Bookstore, Inc. v. Auxiliary Services Corporation of State University of New York at Farmingdale, 87 NY 2d 410 (1995)]. In that case, a branch of the State University of New York (SUNY) contracted with the Auxiliary Services Corporation, which supplied "essential services" to SUNY. Because the Auxiliary Services Corporation was found to be carrying out functions that would otherwise necessarily be performed by SUNY, it was determined that it maintained records on behalf of SUNY through a delegation of responsibility and that, therefore, the materials sought were SUNY records. The situation involving the Freedom of Information Law and the Institute appears to be quite different. While it is clear that the Foundation was created to support the Institute, there is nothing in the materials that you provided or that has been acquired from other sources that would suggest that the Foundation performs essential services for the Institute by contractual or other means. If that is so, I do not believe that records maintained by the Foundation could be characterized as "agency records" or that they would fall within the coverage of the Freedom of Information Law.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Dr. Thomas B. Tomasi, President and Chief Executive Officer