Documents kept by company acting as agent for university are exempt public records
NEW YORK–Material received by a corporation providing services for a state university and kept on behalf of the university constitutes a public record and should be considered presumptively discoverable under the Freedom of Information Law (FOIL), New York’s highest court, the Court of Appeals in Albany, ruled in late December.
But the Court also held that if the competitive position of the corporation would be harmed by the release of such information, it can be exempted from the disclosure requirement of FOIL.
In November 1992, Encore College Bookstores, which operates a bookstore near the State University of New York at Farmingdale (SUNY), requested a copy of the booklist used by the university bookstore. The bookstore at SUNY was operated by Auxiliary Service Corporation (ASC), a non-profit corporation which was created to manage educational services for SUNY. ASC had subcontracted operation of the bookstore to Barnes & Noble. Barnes & Noble’s policy was to send a copy of each faculty member’s purchase orders to ASC.
SUNY initially denied Encore’s request for the list, but later produced the list after the company brought suit against SUNY. Encore subsequently discontinued its proceeding.
Barnes & Noble then stopped sending the university a copy of the book orders, asserting that they had suffered in business because of the disclosure to Encore.
In the spring of 1993, Encore filed a second FOIL request. SUNY denied the request, explaining that it no longer received copies of the book order forms. Encore then sued SUNY and ASC, seeking disclosure.
The trial court in New York City dismissed the case in October 1993, holding that SUNY’s lack of involvement in gathering the information released it from any FOIL obligation, and that the information was exempt from disclosure by ASC because its release would impair current contract awards.
The appellate division affirmed, finding that SUNY was not obligated under FOIL, and that ASC was exempt because disclosure would harm the competitive position of Barnes & Noble.
The Court of Appeals affirmed the ruling with respect to ASC, but held that the booklist should be considered a public record and that SUNY was not released from its FOIL obligation. Since SUNY did not raise the competitive harm exemption, the court ordered the school to release the booklist. (Encore College Bookstores v. Auxiliary Services Corporation; Counsel for appellant: Joseph A. Faraldo, New York City)