April 19, 1996
Ms. Susan Bisha
102 D Harmon Hall
Brockport, NY 14420
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 Ms. Bisha:
I have received your letter of April 11, as well as the materials attached to it.
In your capacity as associate news editor of the Stylus, the campus newspaper at SUNY College at Brockport, you wrote that you cover the weekly meetings of the Board of Directors of the Brockport Student Government (BSG). At a recent meeting, however, you were "ordered" by the chairperson to leave, even though there was neither a motion made to enter into executive session nor an indication of the subjects to be discussed. You indicated that students pay a mandatory activity, that they elect the members of the BSG, and that board of the BSG "spends student fee money on behalf [of] the students.
You have asked whether the BSG "is a public body covered by the state open meeting and open records laws." In my opinion, based on the language of those laws and their recent judicial interpretation the BSG is required to comply with both the Freedom of Information Law and the Open Meetings Law. In this regard, I offer the following comments.
For purposes of the Freedom of Information Law, the question is whether the BSG is an "agency". Section 86(3) of that statute define 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."
Here I refer to Carroll v. Blinken [957 F.2d 991 (2d Cir. 1992), cert. denied, 113 S.Ct. 300 (1972)] in which 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." The Carroll decision, which pertains to Polity, the student government body at SUNY/Stony Brook, indicates that "the allocation of activity fee money to [a campus organization] NYPIRG" was a justifiable exercise of State action and that the allocation of funds constitutes official action because the SUNY Trustees require all SUNY students pursuant to §355 of the Education Law to pay a mandatory student activity fee each semester. "Those who fail to pay the fee...are not allowed to register" (id. at 993). Further, BSG's disbursement of these assessed funds is mandated and controlled by regulations promulgated by the State University, 8 N.Y.C.R.R. §302.14. According to Carroll, the regulation determines the manner in which the "student association budget" may allocate funds, and eleven permissible categories of expenditures are defined. As stated in that decision, "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.
In my view, the BSG is clearly involved in performing a governmental function for, on behalf of or in conjunction with the State University. 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, 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 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, BSG would not exist but for its relationship with the SUNY College at Brockport. Due to the similarity between the situation at issue and that presented in Eisenberg, I believe that BSG and its records are subject to the Freedom of Information Law.
I note there is precedent indicating that a not-for-profit corporation may 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].
More 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 BSG, 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."
Perhaps most importantly, a decision rendered earlier this year dealt with the status of a student government body, the Student Polity Association at SUNY/Stony Brook, which was created as a not-for-profit corporation, following a denial of a request by the campus newspaper for its records. In The Stony Brook Statesman v. Associate Vice Chancellor for University Relations (Supreme Court, Ulster County, January 22, 1996), it was determined that "Polity" is an "agency" required to comply with the Freedom of Information Law. In the decision, it was stated that:
"Polity has refused disclosure solely on the grounds that it is not subject to FOIL since it is not a state agency as that term is defined in Public Officers Law Section 86(3). Given the fact that Polity is responsible for spending mandatory student activity fees under supervision of SUNY-Stony Brook and pursuant to and in accordance with Education Law Section 355 and 8 NYCRR 302.14, respondents' position is simply not tenable. In reaching this conclusion, the Court adopts the reasoning set forth in the opinion letter from the Committee on Open Government to petitioner dated May 17, 1995..."
In sum, it is clear in my view that BSG falls within the coverage of the Freedom of Information Law and must disclose its records in accordance with that statute.
With respect to the Open Meetings Law, the issue is whether BSG is a "public body." Section 102(2) 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 a recent decision, Smith and Maitland v.City University of New York (Supreme Court, New York County, January 25, 1996), it was held that the LaGuardia Community College Association, Inc., which is the College's student government body and analogous to the BSG, is a public body subject to the Open Meetings Law. The court rendered its decision during oral arguments, and reference will be made to a series of judicial pronouncements appearing in the transcript of the proceeding. Specifically, the judge stated that:
"The association is performing a governmental function, it's making a final decision. It's not an advisory. Therefore, it is subject, I find that it is subject to the Open Meetings Law, and that is my ruling...This entity is not an advisory committee. Therefore, the reasoning which is set forth in these opinions of the Committee on Open Government, I concur with....they are logical, and I concur with those reasons; because, it's really substituting for governmental function, it's exercising a function of the government; and it's no different whether it's incorporated or not incorporated. It's making decisions for the government. And the government would have to make those decisions if it didn't.
"And on all these other things, issues that you are raising, this is private money of the students, it's collected as part of the students- it's a student activity fee. It's mandatory. It's collected by the sovereign, if you want. The fact that it's put into an account of the association doesn't change it's character. It's still governmental function and it's subject to the Open Meetings Law."
Later in the proceeding, the judge determined that:
"The Petitioners are entitled to a declaration that the Respondents acted in violation of the New York State Open Meetings Law by the conducting of the meeting of the college association on March 30, 1994 in which students and their attorney, right, and the reporter were denied access to attend the meeting. I don't think there is any contest about that...my reading of and my interpretation of this law is that it applies to the association just as the FOIL applies to the association. It's exercising a governmental function."
As a public body, BSG must conduct its meetings open to the public, unless there is a basis for entry into an executive session. It is emphasized that every meeting must be convened as an open meeting, and that §102(3) of the Open Meetings Law defines the phrase "executive session" to mean a portion of an open meeting during which the public may be excluded. As such, it is clear that an executive session is not separate and distinct from an open meeting, but rather that it is a part of an open meeting. Moreover, the Open Meetings Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session. Specifically, §105(1) states in relevant part that:
"Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only..."
As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and it must be carried by majority vote of a public body's membership before such a session may validly be held. The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session. Therefore, a public body may not conduct an executive session to discuss the subject of its choice.
In an effort to enhance compliance with and understanding of the Freedom of Information Laws, copies of this opinion will be forwarded to the BSG and the College President.
I hope that I have been of assistance.
Robert J. Freeman
cc: Brockport Student Government President, SUNY College at Brockport