Op-Ed
FOILed Again
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Saturdays Excepted
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I wrote an editorial entitled “FOILed” in a February 2005 issue of The Sun regarding the New York Court of Appeals decision in Alderson v. New York State College of Agriculture and Life Sciences. In that case, the court tackled the question of whether Cornell was required to comply with a Freedom of Information Law (FOIL) request relating to the research performed in the Ag School, one of Cornell’s statutory colleges.
(New York’s Freedom of Information Law states that the “government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.” Therefore, as long as a person requesting records follows the procedure outlined in the rest of the statute, and as long as the entity from which a person is requesting records is a public entity, the entity must comply with the law and give the person access to the records that they request.)
The facts of the Alderson case were relatively simple: A radio talk show host from Geneva, N.Y. submitted FOIL requests “for documents relating to research activities and financial matters involving [Cornell’s] Agricultural Experiment Station [in Geneva] and a proposed Agricultural Technical Park to be built adjacent thereto.” Cornell refused to comply with the request, relying on an earlier case in which the New York Court of Appeals recognized that Cornell’s statutory colleges ceded their disciplinary authority to Cornell as a private entity and, therefore, Cornell’s disciplinary records were not subject to FOIL.
In Alderson, the court concluded that “while … some of the document requests appear to relate to Cornell’s receipt of public monies implicating ‘public aspects’ of its management function subject to FOIL … those involving prospective and ongoing research projects and activities [ ] intruded into matters over which Cornell exercises statutory autonomy in its private capacity.” Therefore, said the court, Cornell was not required to comply with New York’s Freedom of Information Law with respect to the Ag School’s research activities.
This begs the question, though: when DOES Cornell have to comply with FOIL?
Cornell’s “public and private” nature makes this issue particularly unclear, especially with respect to the Cornell University Police Department.
I bring this up today because of an interesting U-Wire story that The Sun ran last week regarding some FOIL-related happenings at Yale. Apparently, Connecticut’s Freedom of Information Commission compelled the Yale Police Department to release personnel records relating to two of its officers after the YPD initially refused a FOIL request for the information. This comes on the heels of a January 2006 verdict against the Harvard Crimson in which a Massachusetts court said that the Harvard Police Department was not subject to the applicable state freedom of information law.
Why the different treatment? According to a recent article in the Yale Herald, citing a recent article in the Harvard Crimson, “Harvard police are in a different situation because their jurisdiction is more limited than that of the Yale Police Department. The YPD’s partnership with the New Haven Police Department gives it jurisdiction beyond the Yale campus. Furthermore, Connecticut laws stipulate that even private institutions that act like government agencies are subject to Freedom of Information laws. Massachusetts has no such law.”
So, how do these rulings affect Cornell?
The Cornell University Police Department is in a very unique position. Cornell Police officers are deputized New York State Peace Officers, meaning that, at least technically, they are state actors. The Cornell University Police Department itself, however, is part of Cornell University, which is both somewhat public and somewhat private. The fact that the New York Court of Appeals has stated that disciplinary matters are within the province of the private portion of the University might mean that a court would consider the CUPD a private agency, not subject to FOIL. But it might not. In 1981, a New York court said that when Cornell’s Board of Trustees discusses the statutory colleges, its meetings are subject to the state Open Meetings law.
Interestingly enough, to my knowledge, this has never been adjudicated. In 2003, The Ithaca Journal submitted a FOIL request that the CUPD initially denied. But, after an appeal by The Journal, Cornell decided to comply with the request, all the while claiming that it was not obligated to do so.
Is this really a big deal? Well, practically, maybe not. I never really had a problem getting the information that I needed from Vice President for Communications and Media Relations Tommy Bruce and Simeon Moss ’73, director of Cornell’s press office (I woke him up in the middle of the night on more than one occasion). And I haven’t heard that The Sun’s more recent editors have had any issues of any kind.
That said, now that we know how Connecticut and Massachusetts have decided to treat the police departments at our peer institutions, it would be interesting to find out how the New York law would apply to the CUPD.
Perhaps we’ll eventually find out.