March 25, 1998

Mr. Robert Wallace
Assistant to the Ombudsperson
The City College of the City University
of New York
Convent Avenue & 138th Street
New York, NY l0031

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 Mr. Wallace:

I have received your letter of March 6. You have questioned the propriety of the actions of the Auxiliary Enterprise Corporation (AEC), a not-for-profit corporation associated with the City College at the City University of New York (CUNY).

In a memorandum of February 17, Nathan Dickmeyer, Chair of AEC and Vice President of the City College, contended that "[a]s a corporation separate from the College, we [the AEC] are not under any open records obligations." In addition, he wrote that an upcoming meeting of the AEC would be closed to the public. You have sought an opinion concerning the AEC's actions, as well as "possible remediative actions."

In this regard, the Committee on Open Government is authorized to offer advice concerning the Freedom of Information and Open Meetings Laws. The Committee is not empowered to compel compliance with either of those statutes. Nevertheless, it is my hope that the opinions rendered by this office are educational and persuasive, and that they serve to encourage entities to carry out their duties in accordance with open government statutes
when those statutes are applicable.

In this instance, due to the means by which the AEC was created, I believe that it is subject to both the Freedom of Information Law and the Open Meetings Law. I am mindful of the decision rendered in Smith v. City University of New York [661 NYS 2d 599, ___ AD 2d ___ (1997)], which apparently has been cited by Mr. Dickmeyer as the basis for his contentions.
That decision involved the status of a student government association under the Open Meetings Law, and I believe that it is clearly distinguishable from the instant situation.

Among the attachments to your letter is a copy of "Notes to Financial Statements" prepared in 1993 regarding the AEC, which states in relevant part that:

"The City College Auxiliary Enterprises Corporation (the Corporation) was formed in
compliance with the City University of New York's Bylaws, Section 16.10, as adopted by
the Board of Trustees of the City University of New York. The purpose of the Corporation is to provide oversight, supervision and review of all auxiliary enterprises serving the students, faculty, administrative staff, alumni and others in the college community of the City College of The City University of New York.

"The Corporation was organized exclusively for charitable, educational, or scientific

In addition, in Mr. Dickmeyer's memo, he referred to the by-laws of the Corporation and its "Purposes", which include the following:

"Through the provision of auxiliary enterprise services and the use and allocation of auxiliary
enterprise revenues, to assist in developing, improving and increasing the programs,
resources and facilities of The City College to enable it to provide more extensive
educational opportunities and services to its students, faculty, administrative staff, alumni,
and others in the college community."

He also cited Article V, Section 1, concerning the authority of the President of the College in relation to the AEC, which states that:

"The Corporation shall operate consistent with the By-laws, policies and regulations of the
City University of New York and any policies, regulations and orders of The City College.
The President of The City College shall have review authority over all actions taken by the
Corporation's Board. Said review authority shall be exercised in the manner prescribed
under Article 16 of the By-laws of the Board of Trustees of the City University of New

Based on the foregoing, it is clear that the AEC is a creation of CUNY and the City College and that it exists for the purpose of carrying out functions for the City College or which the College would otherwise perform itself.

There are precedents indicating that when a not-for-profit corporation is essentially an arm of government, it falls within the scope of open government laws, despite its corporate status.

The Freedom of Information Law pertains to agency records, and §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, an "agency" generally is an entity of state or local government. Typically, a private entity or a not-for-profit corporation would not constitute an agency, for it would not be a governmental entity.

In the first decision in which it was held that a not-for-profit corporation may indeed be an "agency" required to comply with the Freedom of Information Law, [Westchester-Rockland Newspapers v. Kimball [50 NYS 2d 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 nformation 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).

The point made in the final sentence of the passage quoted above appears to be especially relevant, for, in the context of the facts presented, there appear to be "considerable crossover" in the activities of certain persons, notably Mr. Dickmeyer, in the performance of their duties for the AEC and the College.

More recently, 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).

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 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

'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, the AEC, would not exist but for their relationship with CUNY.

Due to the similarity between the situation you have described and that presented in Eisenberg, as well as the goals of the AEC and its relationship to the College, I believe that it is subject to the Freedom of Information Law.

Also pertinent is a determination rendered by the State's highest court in which it was found that materials received by a corporation providing services 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)]. 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

In this instance, it would appear that all records kept or produced by the AEC would be maintained for CUNY and the City College. Therefore, I believe that its records would fall within the scope of the Freedom of Information Law.

If the AEC is an agency that falls within the scope of the Freedom of Information Law, I believe that its Board would constitute a "public body" for purposes of the Open Meetings Law. Section 102(2) defines that phrase 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 its components, I believe that each condition necessary to a finding that the Board of AEC 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 CUNY, I believe that it conducts public business and performs a governmental function for a governmental entity, CUNY.

In an effort to enhance compliance with and understanding of the Freedom of Information and Open Meetings Laws, copies of this opinion will be forwarded to those identified at the end of your letter.

I hope that I have been of assistance.


Robert J. Freeman
Executive Director


cc: President Yolanda Moses
Vice President Nathan Dickmeyer
Martha Flores, Chair, Graduate Student Council
Eduardo Hernandez, President, Student Government