Only a governmental not-for-profit corporation’s records is subject to FOIL
Matter of Rumore v Board of Educ. of City School Dist. of Buffalo, . 35 A.D.3d 1178
Philip Rumore, president of the Buffalo Teachers Federation, sought a court order directing the Board of Education of the City School District of Buffalo (Board) and the Education Innovation Consortium [EIC] to provide him with certain records and information pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6). The records sought included EIC’s salary and budgetary records.
Supreme Court granted Rumore’s petition in part by directing the Board to obtain those records from EIC and then to make them available to Rumore for copying. The Appellate Division disagreed and ruled that the lower court should have dismissed Rumore’s petition in its entirety.
The ruling points out that FOIL requires the disclosure of the records of an “agency”. The term “agency” is defined as "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" (Public Officers Law §86 ).
Although a not-for-profit corporation may fall within the definition of an agency subject to FOIL if its purpose is governmental and it has the attributes of a public entity, here, said the court, the record demonstrated that EIC does not have those attributes.
Among the elements the court found persuasive in finding that EIC was not a governmental body were the following:
EIC's budget is not approved by any governmental agency;
EIC has a self-elected Board of Directors;
The School District has no authority to hire or discharge any employee of EIC;
EIC did not have offices in any District-owned building;
EIC provides services to the District on a fee-for-services basis; and
EIC provides services to other clients as well as the District
Thus, said the court, Supreme Court “erred in concluding that EIC is an agency subject to the mandates of FOIL.”
In addition, the Appellate Division said that it agreed with the arguments advanced by the Board and EIC that because the records sought by Rumore are not "kept, held, filed, produced or reproduced by, with or for" the District by EIC, they do not fall within the ambit of FOIL.