1. Whether Cornell's "statutory colleges" (defined as colleges providing higher education operated by independent institutions on behalf of the state pursuant to a statute or a contract) generally constitute state agencies for the purposes of the Freedom of Information Law (FOIL).

2. Whether Cornell's disciplinary records are subject to FOIL disclosure.

1. No. The hybrid statutory character of the colleges makes such a broad categorization undesirable. Instead, courts must look to the particular statutory character of the activity upon which the FOIL request is made (i.e., whether the state or the private institution has discretion over that aspect of administration).

2. No. The Legislature vested in Cornell University the sole discretion over the maintenance of discipline at its statutory colleges. Therefore, disciplinary records are not held by a state agency and are not obtainable under FOIL.

Plaintiff, the attorney for a Cornell University ("Cornell") psychology professor filed a FOIL request to obtain any complaints and the records pertaining to those complaints brought under the University's Campus Code of Conduct against any university personnel or student of any statutory college operated by Cornell. After the University denied the request, Plaintiff filed a C.P.L.R. article 78 proceeding to compel disclosure. The supreme court found that the statutory colleges were not State agencies subject to FOIL and rejected the request. The Appellate Division reversed and remanded to the supreme court. The Court of Appeals dismissed Petitioner's appeal as nonfinal. Upon remittal, the supreme court considered cornell's affirmative defenses and held that the records must be produced with any confidential information redacted. The Court of Appeals granted leave to appeal and reversed.

The Court noted that Cornell's statutory colleges are unique institutions that combine private and public elements. Cornell is charged with some overarching administrative responsibilities, such as creating an academic curriculum, hiring faculty, maintaining discipline and formulating education policies. Additionally, SUNY colleges of Cornell are not subject to operational authority of the SUNY Board of Trustees and their employees are not members of the State civil service. The state owns the buildings and the land on which the colleges stand. The state also provides funding for the colleges, which Cornell must account for and keep separate from its own funds.

The Court held that, due to the hybrid statutory character of the colleges (i.e., state control over some administrative processes and private control over others), the issue of whether Cornell's statutory colleges are state agencies under FOIL cannot be determined using an all-encompassing general classification. Instead, the Court held that courts must look to the particular statutory character of the institutions, as well as to the activity at issue and who controls this activity. The Court distinguished the instant case from cases where it has held that a government agency had to turn over documents regardless of the purpose for which they were created. In these cases, an organization's status as a state agency does not change based upon why it created or maintained the record. In the instant case, the Court held that Cornell's statutory colleges are a blend of private and governmental activities. Therefore, the activity at issue is central to determining whether the colleges are state agencies for purposes of FOIL.

In the instant case, the Court characterized the request as seeking disciplinary records. The Court observed that the Legislature gave sole discretion over maintaining discipline to Cornell, and concluded, therefore, that the disciplinary records were held by a private entity not subject to FOIL.

The Court emphasized that its ruling does not mean that the entire administration of Cornell's statutory colleges lies beyond FOIL. Instead, the Court limited its decision to disciplinary records. The Court declined to address whether any of the statutory colleges' other activities were subject to FOIL.

Prepared by the liibulletin-ny Editorial Board.