CU administration is pleased with appeals court ruling

Cornell administrators expressed satisfaction last week with the New York State Court of Appeals ruling, Feb. 17, that "research records" of the university's contract college units are not subject to the Freedom of Information Law (FOIL).

In reaching its decision, the Court of Appeals further clarified the unique status of Cornell's operation of the contract colleges, concluding that records of the contract colleges relating to matters over which Cornell has been granted autonomy by statute (the New York Education Law) are not subject to disclosure under FOIL.

"The court articulated a comprehensive and easily applied framework, recognized the extremely broad autonomy of the Cornell trustees over the contract colleges, and unanimously declared that Cornell has complete control of its academic activities, including research," said Cornell University Counsel James Mingle. "Those have been the central issues as far as we're concerned."

Cornell, as a private institution, would not ordinarily be subject to FOIL, as the statute applies only to "state agencies." The State University of New York, a state agency, is subject to FOIL. In a 1999 decision, Matter of Stoll v. New York State College of Veterinary Medicine at Cornell University, the state court of appeals first addressed the extent to which Cornell might be considered a state agency for purposes of FOIL in its operation of the contract colleges, concluding that disciplinary records from Cornell's contract colleges are not subject to FOIL because Cornell retained authority, by statute, over disciplinary matters and thus was not a state agency for that purpose.

In its ruling last week, Matter of Alderson v. New York State College of Agriculture and Life Sciences at Cornell University, the Court of Appeals, reiterated the "unique, sui generis nature of the statutory [contract] colleges and the blend of public/private activities undertaken by Cornell as it carries out its educational mission," and unequivocally concluded that Cornell is not a "state agency" and not subject to FOIL with respect to "matters over which Cornell exercises statutory autonomy in its private capacity."

Under the New York Education Law, those matters explicitly include "the establishment of courses of study, the creation of departments and positions, the determination of the number and salaries of members of the faculty and other employees thereof, the appointment and employment thereof, the maintenance of discipline and as to all other matters pertaining to its educational policies, activities and operations, including research work."

In Jeremy Alderson's lawsuit against Cornell, two lower courts -- the Supreme Court, Tompkins County, and the Appellate Division, Third Department -- had held that Cornell was a state agency for purposes of Alderson's FOIL request seeking research and financial documents relating to Cornell's management of the New York State College of Agriculture and Life Sciences (CALS), the New York State Agricultural Experiment Station in Geneva, N.Y., and a proposed Agricultural Technology Park in Geneva. In a decision released Feb. 17, 2005, New York's highest court, the Court of Appeals, unanimously rejected Alderson's argument along with the analysis and holdings of the two lower courts that had decided the case in his favor.

Thus, contrary to Alderson's assertion accepted by the two lower courts, the Court of Appeals unambiguously held:

"It is evident ... that the issue is not, as petitioner suggests, whether the Agricultural Experiment Station or the proposed Agricultural Technical Park are intended to fulfill a public purpose. If it were, we would have held that the disciplinary records requested in Stoll were subject to FOIL, since the statutory colleges named in that case (including CALS) also fulfill significant public purposes. Rather, the proper inquiry is whether the documents requested under FOIL relate to an activity over which Cornell, as manager of the statutory colleges, exercises autonomy and control."

In reaching this conclusion, the court reasoned:

"Because Cornell is vested by statute with broad authority over all 'matters pertaining to ... educational policies, activities and operations, including research work' at CALS and the Agricultural Experiment Station, documents relating to those activities involve a private function and are therefore not subject to FOIL."

Although the primary focus of Alderson's records request related to research concerning genetically modified organisms, he had also requested some financial records. The Court of Appeals held that, as to financial records, "to the extent Cornell is accountable for the expenditure of public funds, it is performing a public function," and documents related to this activity are subject to FOIL.

Because the court did not have in the case record the documents Cornell produced to the State Supreme Court for confidential review, the court remanded to the lower court to determine whether any of the documents requested by the plaintiff are financial records subject to FOIL in that they involve accounting for the expenditure of public funds. Significantly, Cornell did not object to producing any of the documents subject to disclosure under the Court of Appeals decision considered responsive to Alderson's request for financial information.

The Court of Appeals' analysis will be applicable to future requests of this nature, Mingle said. "The decision of the state's highest court brings welcomed clarity to the Cornell-state relationship, one that many have found confusing," he added. "What the court said about Cornell's academic and operational autonomy over contract colleges means that the university trustees and academic officers are not subordinate to, or agents of, the state in performing these managerial responsibilities. And what the court said about financial accountability is something that Cornell has readily acknowledged: that the state, through SUNY, has reserved fiscal oversight for public funds expended by the contract colleges."