Enlarges the definition of the term "agency" for certain purposes; adds provisions relating to foundations of state-operated campuses.
TITLE OF BILL: An act to amend the public officers law, in relation to the disclosure of agency records; and to amend the education law, in relation to guidelines for foundations of state operated campuses
PURPOSE: Expands the definition of agencies that are required to make documents available to the public under the Freedom of Information Law.
SUMMARY OF PROVISIONS: Amends subdivision three of section eighty-six of the Public Officers Law (the Freedom of Information Law, of FOIL). Adds to the definition of the term "agency" certain types of corporations, foundations and associations that are created by, controlled by or affiliated with a state agency including but not limited to SUNY.
JUSTIFICATION: The Freedom of Information Law has played a crucial role in opening up the operations of government agencies to public discussion and reporting. This has increased accountability and responsiveness of government agencies.
However, the current definition of agencies covered by the FOIL law leaves out certain types of agencies that are technically not agencies of state or local government. These entities are often incorporated as not for profit corporations or limited liability corporations, but operate in effect as subsidiaries of state agencies. For example the SUNY Research Foundation is incorporated as a not for profit but operates as an extensions of SUNY and is controlled by SUNY officials. The Research Foundation describes itself as "the organization responsible for managing research grants and other sponsored programs for SUNY." Yet corporations of this type often refuse to disclose information to the press and the public on the basis that they are not state agencies as defined in the law.
This bill proposes to expand the definition of agency so that any organization that operates as a closely affiliated extension of a state agency will be covered by the FOIL law regardless of its corporate structure. These organizations spend millions of dollars of funds that were received by grants or donations that were intended to further the public purpose of their affiliated state agency. The shell of a separate corporate entity should not be used as an excuse to deny public access to information about how they use these funds.
LEGISLATIVE HISTORY: New legislation.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: January 1, 2013, with provisions.
STATE OF NEW YORK ________________________________________________________________________ 5797--A 2011-2012 Regular Sessions IN SENATE June 16, 2011 ___________Introduced by Sens. LAVALLE, SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- recom- mitted to the Committee on Investigations and Government Operations in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the public officers law, in relation to the disclosure of agency records; and to amend the education law, in relation to guidelines for foundations of state operated campuses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 3 of section 86 of the public officers law, as added by chapter 933 of the laws of 1977, is amended to read as follows: 3. (A) "Agency" means any state or municipal department, board, bureau, division, commission, committee, public authority, public corpo- ration, 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. (B) FOR PURPOSES OF THIS ARTICLE, "AGENCY" SHALL INCLUDE THE RESEARCH FOUNDATION OF THE STATE UNIVERSITY OF NEW YORK, FOUNDATIONS AND AUXILIA- RY SERVICE CORPORATIONS ASSOCIATED WITH ANY PUBLIC COLLEGE OR UNIVERSI- TY, AND NOT-FOR-PROFIT CORPORATIONS AND LIMITED LIABILITY CORPORATIONS CREATED OR CONTROLLED BY ANY PUBLIC COLLEGE OR UNIVERSITY, AND THE CORPORATIONS IDENTIFIED IN PARAGRAPH (D) OF SUBDIVISION FIVE OF SECTION FIFTY-THREE-A OF THE STATE FINANCE LAW, PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO THE STATUTORY COLLEGES AND CONTRACT COLLEGES AT ALFRED AND CORNELL OR ANY ALUMNI ASSOCIATION OR CLINICAL PRACTICE PLAN ASSOCIATED WITH A PUBLIC COLLEGE OR UNIVERSITY. S 2. Paragraph (l) of subdivision 2 of section 87 of the public offi- cers law, as added by section 12 of part II of chapter 59 of the laws of 2010, is amended and two new paragraphs (m) and (n) are added to read as follows:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13175-03-2 S. 5797--A 2
(l) are photographs, microphotographs, videotape or other recorded images produced by a bus lane photo device prepared under authority of section eleven hundred eleven-c of the vehicle and traffic law
[.]; (M) ARE RECORDS OF AN AGENCY RELATING TO CHARITABLE DONORS OR PROSPEC- TIVE DONORS, INCLUDING BUT NOT LIMITED TO THE FUND-RAISING STRATEGIES OF AGENCIES IDENTIFIED IN PARAGRAPH (B) OF SUBDIVISION THREE OF SECTION EIGHTY-SIX OF THIS ARTICLE, PROVIDED THAT RECORDS RELATING TO FUND-RAIS- ING STRATEGIES WOULD, IF DISCLOSED, IMPAIR THE ABILITY OF THOSE AGENCIES TO ATTRACT OR GAIN DONATIONS, AND PROVIDED FURTHER THAT THE NAME OF ANY DONOR AND THE AMOUNT OF DONATION MADE BY SUCH DONOR SHALL BE SUBJECT TO DISCLOSURE IF SUCH DONOR, OR ANY ENTITY IN WHICH SUCH DONOR HAS A SUBSTANTIAL INTEREST, SEEKS TO TRANSACT BUSINESS, OR DOES TRANSACT BUSI- NESS, WITH THE AGENCY TO WHICH THE DONATION IS MADE WITHIN THREE YEARS OF THE DATE OF SUCH DONATION. NOTHING IN THIS SECTION SHALL EXEMPT FROM DISCLOSURE THE AMOUNT OR VALUE OF AN INDIVIDUAL GIFT, GRANT, DONATION OR PLEDGE; (N) ARE ACADEMIC OR SCIENTIFIC RESEARCH OR RESEARCH-RELATED RECORDS, INCLUDING ANY DRAFT, PRELIMINARY OR UNFUNDED GRANT OR CONTRACT DOCUMENT, WHETHER SPONSORED BY THE AGENCY ITSELF OR IN CONJUNCTION WITH A THIRD PARTY, OR RECORDS RELATING TO THE AGENCY'S INTELLECTUAL PROPERTY, WHICH, IF DISCLOSED, WOULD ADVERSELY AFFECT LICENSE, PATENT, COPYRIGHT OR OTHER RIGHTS OF THE AGENCY. THIS PARAGRAPH SHALL NOT PERMIT AN AGENCY TO WITH- HOLD RECORDS OR PORTIONS THEREOF PERTAINING TO THE NAME, TITLE, EXPENDI- TURE, SOURCE OR AMOUNT OF PUBLIC FUNDING RELATING TO SUCH RESEARCH OR INTELLECTUAL PROPERTY. S 3. The opening paragraph of subdivision 6 of section 355 of the education law is designated paragraph (a) and a new paragraph (b) is added to read as follows: (B) THE STATE UNIVERSITY TRUSTEES SHALL ADOPT GUIDELINES FOR FOUNDA- TIONS OF STATE-OPERATED CAMPUSES THAT REQUIRE EACH FOUNDATION TO ADOPT A CONFLICT OF INTEREST POLICY APPLICABLE TO SUCH FOUNDATION AND ITS AFFIL- IATED CORPORATIONS. AMONG OTHER ITEMS, THE STATE UNIVERSITY TRUSTEES' GUIDELINES SHALL REQUIRE SUCH FOUNDATION POLICIES TO PROVIDE: (I) THAT SERVICE AS A BOARD MEMBER OR OFFICER THEREOF SHALL NOT BE USED AS A MEANS FOR PRIVATE BENEFIT OR INUREMENT FOR THE BOARD MEMBER OR OFFICER OR RELATIVE THEREOF, OR ANY ENTITY IN WHICH THE BOARD MEMBER OR OFFICER, OR RELATIVE THEREOF, HAS A BUSINESS INTEREST; (II) NO BOARD MEMBER OR OFFICER WHO IS A VENDOR OF GOODS OR SERVICES TO THE FOUNDATION OR ITS AFFILIATED CORPORATION, OR HAS A BUSINESS INTEREST IN SUCH VENDOR, OR WHOSE RELATIVE HAS A BUSINESS INTEREST IN SUCH VENDOR, SHALL VOTE ON, OR PARTICIPATE IN THE FOUNDATION'S ADMINISTRATION OF, AND TRANSACTION WITH SUCH VENDOR; AND (III) A BOARD MEMBER OR OFFICER SHALL ADVISE THE CHAIR OF THE FOUNDATION OR ITS AFFILIATED CORPORATION OF HIS, HER OR A RELA- TIVE'S BUSINESS INTEREST IN ANY SUCH EXISTING OR PROPOSED VENDOR WITH THE FOUNDATION OR ITS AFFILIATE. THE STATE UNIVERSITY TRUSTEE'S GUIDE- LINES SHALL DEFINE THE NATURE OF A BUSINESS INTEREST AND THE CLOSENESS OF A PERSONAL RELATION THAT BRING A RELATIONSHIP WITHIN THE PURPOSES OF THIS SECTION. S 4. This act shall take effect January 1, 2013; provided, however, that the amendments to paragraph (l) of subdivision 2 of section 87 of the public officers law made by section two of this act shall not affect the repeal of such paragraph and shall expire and be deemed repealed therewith; provided further that the amendments to subdivision 6 of section 355 of the education law made by section three of this act shall not affect the expiration of such subdivision and shall be deemed to expire therewith.