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Russo v. Nassau County Community College

81 N.Y.2d 690 Court N.Y. Decision date 1993-10-14 English

Delivered by Smith, J.

Contents

Majority

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[623 NE2d 15, 603 NYS2d 294]
In the Matter of Frank J. Russo, Jr., Appellant, v Nassau County Community College et al., Respondents. State University of New York et al., Intervenors-Respondents.
Argued August 31,1993;
decided October 14, 1993
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POINTS OF COUNSEL
Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City (Robert F. Van Der Waag and Michele Traboscia of counsel), for appellant.
I. Under the plain language of the Freedom of Information Law, respondents are an "agency” and the materials sought constitute "records”. (Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176 ; Matter of Fink v Lefkowitz, 47 NY2d 567 ; Matter of Buff alo Broadcasting Co. v New York State Dept. of Correctional Servs., 174 AD2d 212 ; Matter of Capital Newspapers v Whalen, 69 NY2d 246 ; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557 ; Matter of Lipsman v Bass, 67 AD2d 654 ; Matter of Harris v City Univ. of N. Y., 114 AD2d 805 ; Matter of Kryston v Board of Educ., 77 AD2d 896 ; Matter of Scott, Sardano & Pomeranz v Records Access Officer, 65 NY2d 294 .) II. There are no constitutional questions involved. (SHAD Alliance v Smith Haven Mall, 66 NY2d 496 ; Richmond Newspapers v Virginia, 448 US 555 ; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748 ; Civil Serv. Commn. v Carriers, 413 US 548 ; Laird v Tatum, 408 US 1 , 409 US 901 ,
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479 US 911 ; United Pub. Workers v Mitchell, 330 US 75 ; Department of Justice v Tax Analysts, 492 US 136 ; Sweezy v New Hampshire, 354 US 234 ; Uphaus v Wyman, 360 US 72 .)
Proskauer Rose Goetz & Mendelsohn, New York City (Gregg M. Mashberg and Andr G. Castaybert of counsel), for respondents.
I. The Court below correctly held that college course materials are not agency records within the purview of FOIL. (Public Citizen v Department of Justice, 491 US 440 ; DeBartola Corp. v Florida Gulf Coast Trades Council, 485 US 568 ; NLRB v Catholic Bishop of Chicago, 440 US 490 ; People v Cintron, 75 NY2d 249 ; Matter of Sarah K, 66 NY2d 223 , cert denied sub nom. Kosher v Stamatis, 475 US 1108 ; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143 ; People v Barber, 289 NY 378 ; Matter of Capital Newspapers v Whalen, 69 NY2d 246 ; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557 ; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575 .) II. Alternatively, if course materials are deemed records under FOIL, they are nonetheless exempt from disclosure under FOIL’S exemption for intraagency materials. (Matter of Xerox Corp. v Town of Webster, 65 NY2d 131 ; Matter of Town of Oyster Bay v Williams, 134 AD2d 267 ; Matter of McAulay v Board of Educ., 61 AD2d 1048 , 48 NY2d 659 ; Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176 .)
Katherine A. Levine and James R. Sandner, New York City, for Nassau Community College Federation of Teachers, Local 3150, intervenor-respondent.
I. The college, when it engages in its educational function, does not constitute an agency under FOIL. (Matter of Capital Newspapers v Whalen, 69 NY2d 246 ; Matter of Fink v Lefkowitz, 47 NY2d 567 ; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557 ; Matter of Krauss v Nassau Community Coll., 122 Misc 2d 218 ; Matter of Cline v Board of Trustees, 76 Misc 2d 536 ; Equal Empl. Opportunity Commn. v Franklin & Marshall Coll., 775 F2d 110 ; NLRB v Yeshiva Univ., 444 US 672 ; National Labor Relations Bd. v Florida Mem. Coll., 820 F2d 1182 ; University of Cal. Regents v Bakke, 438 US 265 ; Wieman v Updegraff, 344 US 183 .) II. Compelled disclosure of the requested material would violate both the college’s and faculty’s right to academic freedom as protected under the First Amendment and the Equal Protection Clause. (Keyishian v Board of Regents, 385 US 589 ; Sweezy v New Hampshire, 354 US 234 ; Regents of Univ. of Mich, v Ewing, 474 US 214 ; Parate v Isibor, 868 F2d
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821 ; Widmar v Vincent, 454 US 263 ; Dow Chem. Co. v Allen, 672 F2d 1262 ; Kunda v Muhlenberg Coll., 621 F2d 532 ; Finley v National Endowment for the Arts, 795 F Supp 1457 .) III. Alternatively, this Court can find that the college course materials are exempt from disclosure under FOIL’S exemption for intra-agency memoranda. (Environmental Protection Agency v Mink, 410 US 73 ; Stokes v Brennan, 476 F2d 699 ; Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176 .)
Robert Abrams, Attorney-General, Hauppauge (Susan B. Blum and Jerry Boone of counsel), for State University of New York, intervenor-respondent.
I. The court below was correct in not applying FOIL to the materials sought by petitioner. (Regents of Univ. of Mich. v Ewing, 474 US 214 ; Board of Curators, Univ. of Mo. v Horowitz, 435 US 78 ; Matter of Olsson v Board of Higher Educ., 49 NY2d 408 ; Matter of Susan M. v New York Law School, 76 NY2d 241 ; Hamburger v Cornell Univ., 204 App Div 664 , 240 NY 328 ; Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106 ; Matter of Capital Newspapers v Whalen, 69 NY2d 246 ; Matter of Lipsman v Bass, 67 AD2d 654 ; Matter of Harris v City Univ. of N. Y., 114 AD2d 805 ; Matter of Kryston v Board of Educ., 77 AD2d 896 .) II. The academic arms of universities and colleges have been and can be treated differently without compromising the broad disclosure goals of FOIL. (Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees, 184 AD2d 508 , 80 NY2d 757 ; Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees, 79 NY2d 927 ; Miller v State of New York, 62 NY2d 506 ; Tedeschi v Wagner Coll., 49 NY2d 652 ; Matter of Mary M. v Clark, 100 AD2d 41 ; Babigian v Evans, 104 Misc 2d 140 , 97 AD2d 992 .) III. The application of FOIL to curricular materials raises serious constitutional questions concerning the academic freedom of the institution and its faculty members under the First Amendment. (Matter of Sarah K, 66 NY2d 223 ; Keyishian v Board of Regents, 385 US 589 ; Sweezy v New Hampshire, 354 US 234 ; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143 ; Childs v Childs, 69 AD2d 406 , 446 US 901 .)
Helen D. Irvin, of the District of Columbia Bar, admitted pro hac vice, and Ralph S. Brown, New York City, for American Association of University Professors, amicus curiae.
I. Forced disclosure of classroom materials violates academic freedom. (Keyishian v Board of Regents, 385 US 589 ; Sweezy v New
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Hampshire, 354 US 234 ; Perry v Sindermann, 408 US 593 ; Speiser v Randall, 357 US 513 ; Regents of Univ. of Mich, v Ewing, 474 US 214 ; Baggett v Bullitt, 377 US 360 ; N. A. A. C. P. v Button, 371 US 415 ; United States v Associated Press, 52 F Supp 362 ; Ashwander v Valley Auth., 297 US 288 .) II. Classroom teaching materials are exempt from public disclosure under the Freedom of Information Law. (Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176 ; Ingram v Axelrod, 90 AD2d 568 ; Matter of McAulay v Board of Educ., 61 AD2d 1048 , 48 NY2d 659 ; Matter of Kheel v Ravitch, 62 NY2d 1 .)
Ira Michael Shepard, of the District of Columbia Bar, admitted pro hoc vice, for Association of Community College Trustees, amicus curiae.
Established principles of constitutionally protected academic freedom insulate a public institution of higher education from compelled disclosure of course materials pursuant to New York’s Freedom of Information Law. (Sweezy v New Hampshire, 354 US 234 ; Regents of Univ. of Mich. v Ewing, 474 US 214 ; Keyishian v Board of Regents, 385 US 589 ; University of Cal. Regents v Bakke, 438 US 265 ; Griswold v Connecticut, 381 US 479 ; Wieman v Updegraff, 344 US 183 ; Shelton v Tucker, 364 US 479 ; University of Pa. v Equal Empl. Opportunity Commn., 493 US 182 ; N. A. A. C. P. v Alabama, 357 US 449 .)
Arthur N. Eisenberg, New York City, Lankenau, Kovner & Kurtz (Wayne N. Outten of counsel), and Michael A.
Simon for New York Civil Liberties Union and another, amici curiae. The constitutional right of academic freedom embraces the right to be free from inquisition and intrusion into the content of course material. In order to avoid a conflict between the Freedom of Information Law and constitutional rights of academic freedom, this Court should fashion an "academic freedom” exemption to New York’s FOIL and should uphold the College’s refusal to disclose the materials at issue here. (Sweezy v New Hampshire, 354 US 234 ; Keyishian v Board of Regents, 385 US 589 ; University of Cal. Regents v Bakke, 438 US 265 ; Board of Curators, Univ. of Mo. v Horowitz, 435 US 78 ; Regents of Univ. of Mich. v Ewing, 474 US 214 ; University of Pa. v Equal Empl. Opportunity Commn., 493 US 182 ; Boyd v United States, 116 US 606 ; Buckley v Valeo, 424 US 1 ; Brown v Socialist Workers '74 Campaign Comm., 459 US 87 ; Federal Election Commn. v Hall-Tyner Election Campaign Comm., 678 F2d 416 .)
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Mark Goodman, Michael Hiestand, Jane E. Kirtley, Eric P. Robinson and Leena Soni, of the District of Columbia Bar, admitted pro hac vice, for Student Press Law Center, Inc., and another, amici curiae.
I. Nassau County Community College, including its academic departments, is an "agency” under the New York Freedom of Information Law. (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557 ; Matter of Russo v Nassau Community Coll., 147 Misc 2d 179 ; Matter of Lipsman v Bass, 67 AD2d 654 ; Matter of Harris v City Univ. of N. Y., 114 AD2d 805 ; Matter of Kryston v Board of Educ., 77 AD2d 896 ; Matter of Gabriel v Turner, 50 AD2d 889 ; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575 ; Matter of Capital Newspapers v Whalen, 69 NY2d 246 .) II. Teaching materials owned by Nassau County Community College, such as films and filmstrips, are "records” under FOIL. (Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176 ; Matter of Fink v Lefkowitz, 47 NY2d 567 ; Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234 .) III. No exemption under FOIL applies to the records requested. (Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825 ; Matter of Russo v Nassau Community Coll., 147 Misc 2d 179 ; Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176 ; Michael v Communications Workers, 130 Misv 2d 424; Department of Justice v Tax Analysts, 492 US 136 .) IV. The College has no competing academic freedom right that conflicts with the requirements of FOIL. (Thomas v Collins, 323 US 516 ; University of Pa. v Equal Empl. Opportunity Commn., 493 US 182 ; Sweezy v New Hampshire, 354 US 234 ; Keyishian v Board of Regents, 385 US 589 ; Adler v Board of Educ., 342 US 485 ; University of Cal. Regents v Bakke, 438 US 265 ; Matter of Russo v Nassau County Community Coll., 185 AD2d 982 .)

OPINION OF THE COURT

The issue here is whether a film and filmstrips used by a professor in a course given in a public college constitute "agency records” subject to Freedom of Information Law (FOIL) disclosure. We hold that the items sought are subject to disclosure under FOIL. Accordingly, we reverse the order of the Appellate Division.

Respondent Nassau County Community College is chartered under Education Law article 126. Nassau County sponsors the

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institution which is also partially funded by special County appropriations. The College’s operations, however, are governed by its own Board of Trustees (see, Education Law §§ 6304, 6306, 6310).

Petitioner, a Nassau County resident, requested that the College produce, for his inspection, a specified film and film strips used in a course entitled "Family Life and Human Sexuality” and listed as "PED 251.” Petitioner made several written requests for access to the course film entitled "Sexual Intercourse” pursuant to New York’s Freedom of Information Law (Public Officers Law §§ 84-90). Sean A. Fanelli, the president of the College, and the College attorney both denied petitioner’s requests, indicating that because the film sought was part of a course curriculum, it was not a "record” as contemplated by the Freedom of Information Law.

Petitioner exchanged correspondence with Fanelli concerning Fanelli’s assertion that copyright difficulties constituted an additional reason for the College’s denial, apparently prompting petitioner to request copies of the contracts involved in the purchase of the film, filmstrips, and any other "sexually explicit” visual aids for the course. Petitioner subsequently limited his request to the opportunity to "inspect” the specified items. In addition to petitioner’s written requests to the College’s officials, petitioner, along with other individuals, attended public meetings of the institution’s Board of Trustees seeking permission to review the items, but to no avail.

Fanelli denied petitioner’s subsequent appeals (see, Public Officers Law § 89 [4] [a] [delineating appeal procedures for persons denied access to records]) and referred the matter to the Committee on Open Government (see, id., § 89 [1] [b] [ii] [requiring the committee to "furnish to any person advisory opinions or other appropriate information regarding (FOIL)”]). The executive director of the committee responded to petitioner by letter (dated Dec. 21, 1988) concluding that the PED 251 film, filmstrips and contracts were "records” for FOIL purposes, but that copyright restrictions barred respondents from allowing petitioner to view them.

Petitioner commenced this CPLR article 78 proceeding (see, Public Officers Law § 89 [4] [b] [authorizing article 78 review for person denied disclosure after appeal]) seeking to compel respondents to grant him access to the PED 251 specified items. Supreme Court agreed with petitioner that the items constitute "agency records” under FOIL’S (Public Officers Law

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§ 86 [4]) broad definition of the term and rejected respondents’ additional contentions that (1) the items were also protected from public disclosure because they were inter- and/or intraagency materials that were not final policy determinations pursuant to Public Officers Law § 87 (2), and (2) the release of the items would promote a "chilling effect” upon the College’s academic freedom in violation of respondent’s First Amendment rights. That court directed the College "forthwith to permit the petitioner to inspect the [items].” The Appellate Division reversed, declining to reach the intra/inter-agency/ final policy and constitutional issues. The Court held, as a matter of law, that the items requested did not constitute "agency records” within the meaning of FOIL. This Court granted leave to appeal and now reverses.

The Legislature unequivocally set forth its policy regarding the purpose of the Freedom of Information Law. The Legislative Declaration (Public Officers Law § 84) states, in part, "The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.” In Governor Wilson’s Approval Memorandum to the FOIL bills, he stressed the view that open and accessible government is a hallmark of a free society, engendering public understanding and participation (see, Governor’s Mem approving L 1974, chs 578, 579, 580, 1974 NY Legis Ann, at 392). He further noted, "The bills that I am today approving expressly affirm these principles and the beliefs which I have long held — that government is the people’s business and that the people have a right to know the processes by which government decisions are made” (id.; see generally, Note, New York’s Freedom of Information Law, Disclosure Under the CPLR, and the Common-Law Privilege for Official Information: Conflict and Confusion Over “the People’s Right to Know”, 33 Syracuse L Rev 615 [1982]; Marino, The New York Freedom of Information Law, 43 Fordham L Rev 83 [1974-1975]).

In Matter of Capital Newspapers v Whalen ( 69 NY2d 246 ), this Court noted the Legislature’s policy that "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” (id., at 252; Public Officers Law § 84; see also, Matter of Prisoners’ Legal Servs. v New York State Dept. of

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Correctional Servs., 73 NY2d 26 ; Matter of Washington Post Co. v New York State Ins. Dept. 61 NY2d 557 , 564; Matter of Fink v Lefkowitz, 47 NY2d 567 , 571). In Whalen, we held that the personal correspondence of a former Albany Mayor, commingled with official government documents and "kept” or "held” by a governmental entity, constituted "records” under FOIL. That the Mayor’s papers concerned matters of a personal nature did not change their public nature and susceptibility to FOIL. The focus of our inquiry under FOIL in that case, as here, was the underlying principle of granting "maximum access to the records of government” (Matter of Capital Newspapers v Whalen, 69 NY2d 246 , 252, supra). It is within the framework of this declared policy that we address the specific contentions before us.

First, we reject the position of the intervenor-respondent Nassau Community College Federation of Teachers that the College is not an "agency” within the scope of FOIL when it engages in its educational function. Public Officers Law § 86 (3) defines an "agency” as "any * * * governmental entity performing a governmental or proprietary function.”[1] Intervenor claims that the doctrine of "academic abstention” and statutory construction compel the conclusion that the Legislature did not intend to "extend FOIL’S definition of an agency to a college’s faculty committees and academic components when they perform educational functions.” To the extent that intervenor’s argument is an invitation for us to delineate distinctions between the parameters of educational, proprietary and governmental functions, we decline to do so. We do hold that for the purposes of petitioner’s FOIL inquiry, this public College constitutes an "agency.” Nothing in the statute or legislative history requires a contrary holding, and the statutory language should be interpreted consistent with "its natural and most obvious” meaning (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 94; Price v Price, 69 NY2d 8 , 15-17). Moreover, as we held in Matter of Westchester Rock-land Newspapers v Kimball ( 50 NY2d 575 , 581), FOIL’S scope should not be restricted to "the purpose for which a document was produced or the function to which it relates” (see also,

1 Public Officers Law § 86 ("Definitions”) states, in part: " 'Agency’ means 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.”

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Matter of Capital Newspapers v Whalen, 69 NY2d 246 , 253, supra).

Petitioner argues, and we hold only, that Public Officers Law § 86 (4) entitles him to the PED 251 films. The statute defines a "record” as:

"any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes” (Public Officers Law § 86 [4] [emphasis supplied]).

The breadth of the statutory language, in conjunction with the purpose of FOIL, compels us to hold that the items petitioner seeks to inspect — a film and filmstrips from a college-level course taught in a public college and provided by the college — undoubtedly fall within the scope of the Public Officers Law § 86 (4) definition. To hold otherwise would frustrate the goal of liberal disclosure under FOIL and employ an extremely restricted view of what constitutes a "record,” especially when applying settled principles of statutory construction (McKinney’s Cons Laws of NY, Book 1, Statutes § 94; see, Matter of Capital Newspapers v Whalen, 69 NY2d 246 , 251, supra; Price v Price, 69 NY2d 8 , 15-17, supra).

Respondents contend that even if we hold that the definition of "record” under FOIL encompasses the specified items for PED 251, we should exclude them from public disclosure pursuant to the statute’s exemption for "inter-agency or intra-agency materials” (Public Officers Law § 87 [2] [g]).[2] While the term "inter-agency materials” is not defined under the FOIL statute, New York’s courts have construed this term to mean "deliberative material,” i.e., communications exchanged for discussion purposes not constituting final policy decisions (Matter of Xerox Corp. v Town of Webster, 65 NY2d 131 ). Respondents contend that the classroom environ

2 Subdivision (2) (g) (iii) of Public Officers Law § 87 ("Access to agency records”) states, in part: "Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that * ** * (g) are inter-agency or intra-agency materials which are not * * * final agency policy or determinations”.

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ment in which the films are used is one of "deliberation” — not "final determinations.” We disagree with respondents’ characterizations of the items. Recognizing that the College has used them in the course for years, there is no valid reason to hold that the items used do not constitute "final agency policy or determinations.” Although respondents argue that the classroom environment is one of "deliberation,” that in itself does not alter the status of the items used in the classroom. Respondents have not shown that the items petitioner seeks rest "squarely within the ambit of one of [the] statutory exemptions,” thereby justifying respondents’ refusal to disclose them to petitioner (Matter of Fink v Lefkowitz, 47 NY2d 567 , 571, supra).

We have examined respondents’ and intervenors’ remaining contentions and find them to be without merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition granted in accordance with this opinion.

Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Chief Judge Kaye and Judge Levine taking no part.

Order reversed, etc.

Cases cited

Statutes and regulations cited