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New York Freedom of Information Law Agency Records Subject to Disclosure although held by Separate C

New York's Freedom of Information Law, or FOIL, is the statutory civil right giving the public access to agency records. One of the issues in this case is "does material received by a corporation providing services for a State university and kept on behalf of the university constitute a "record" that is presumptively discoverable under FOIL." Encore College Bookstores, Inc. v. Farmingdale, 639 NY2d 990 (Dec. 27, 1995)"

The case concerns whether records held by a private company may be considered agency records. Here Encore College Bookstores sought records from Barnes and Noble by filing a Freedom of Information Law Request ("FOIL") with State University of New York ("SUNY") in regards to book-lists compiled by Barnes and Nobles. SUNY denied a second request on the basis that the process of collecting information/copies of the book-list were no longer in its possession. "The trial court dismissed the petition, finding first that SUNY's lack of involvement in gathering the requested information released it from any obligation to produce the information under FOIL, and second that the information was exempt from disclosure by ASC because its release would impair current contract awards (Public Officers Law § 87[2][c]). The Appellate Division affirmed. It too held that SUNY was not obligated under FOIL to produce material neither created by it nor within its possession and control and additionally that, assuming ASC was subject to FOIL, the information was exempt because disclosure would cause substantial injury to the competitive position of Barnes & Noble (Public Officers Law § 87[2][d])." The New York Court of Appeals noted that "The principal business of petitioner Encore College Bookstores, Inc. is the acquisition, collection and sale of college textbooks and other learning-related materials. Encore operates a bookstore near the Farmingdale campus of respondent State University of New York (SUNY), a public university established pursuant to Education Law § 352." Furthermore,

SUNY, a public university, clearly constitutes an "agency," defined as "any * * * governmental entity performing a governmental or proprietary function for the state" (Public Officers Law § 86[3]; see, Russo v Nassau County College, 81 NY2d 690, 698). We must therefore determine as a threshold matter whether the list sought by Encore is a "record" that SUNY must make available to the public. In doing so, we are mindful that FOIL itself is to be read liberally and its exemptions read narrowly (id., at 697).

In order to fulfill its educational mission, SUNY must provide certain auxiliary services to its campus community. As set forth unequivocally in ASC's bylaws, the function of ASC is to supply these essential services--including the campus bookstore--for SUNY. ASC's acts in discharging this delegated duty, then, are performed on SUNY's behalf.

Because ASC receives a copy of the booklist compiled by its subcontractor, Barnes & Noble, to ensure that the campus bookstore is adequately maintained, it does so for the benefit of SUNY, a government agency. In other words, the booklist information is "kept" or "held" by ASC "for an agency" (Public Officers Law § 86[4]). Thus, the information falls within the unambiguous definition of the term "records" under FOIL.

The Court of Appeals rejects the idea that disclosure can turn on whether the information is within the physical possession of an agency. Although the records should be exempt on another ground, the Court finds that the agency cannot simply divest itself of possession to evade compliance with the Freedom of Information Law. FOIL requires that an agency and agency records be available to the public unless subject to an exemption.

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