Cornell:
Open and Shut Case

Ithaca Journal 18feb2005

From News Services

ALBANY — Attorneys for each side claimed victory Thursday in an open records lawsuit for Cornell University documents.

New York's highest court ruled 7-0 that Cornell can withhold documents from the public on its genetically-modified crop research.

The court also ruled, however, that Cornell must comply with New York's Freedom of Information Law and allow the public to review records related to state funding of Cornell activities. Cornell has claimed that because it is a private institution, it is not covered by New York's Freedom of Information Law (FOIL).

"Cornell is subject to certain financial reporting requirements to allow state officials to track the expenditure of state funds," wrote Judge Victoria Graffeo in Thursday's decision. "Documents related to this activity are subject to FOIL."

At issue was a long-running Freedom of Information request by Jeremy Alderson, a former WEOS public radio host who sought data about Cornell's research station in Geneva. In 2000, he sought records into the safety of Cornell's biotech research.

Fighting the demand, Cornell maintained that the heart of the issue was not the research but rather its status as a private college. Private schools and companies aren't subject to the Freedom of Information Law, which compels government entities to disclose all but a few exempted records upon request.

But Cornell has a hybrid status that makes it unlike any other university in New York. It's considered the state's land-grant college, similar to Michigan State, Virginia Tech or Texas A&M. Under a 130-year-old agreement with state government, Cornell operates so-called "statutory colleges" in the fields of veterinary medicine, agriculture and life sciences and others.

"The courts have unanimously declared Cornell has control of research and academic activities," James Mingle, Cornell counsel said. "That's been the central issue as far as we were concerned, not the open records issue."

He said the university considers the decision a victory because it will keep private sensitive research records. He said few of the 134 documents sought would fit the court's definition of public finance records.

Part of the court's ruling, however, stated: "We reject Cornell's argument that it is categorically exempt from FOIL compliance."

Alderson's attorney, Diane Campbell, said piercing Cornell's "FOIL fortress" was the point.

"We all are interested in democracy and freedom — I know that sounds corny — but we think freedom of information statutes should be applied as broadly as possible," said Campbell, whose law firm, Lo Pinto, Schlather, Solomon & Salk of Ithaca, is handling the case without charge.

The court's decision clarifies Cornell's boundaries in regard to the Freedom of Information Law, said Robert Freeman, executive director of the state Committee on Open Government. However, Freeman said he was a bit surprised because he thought the court would have granted broader public access to the university's records — when the information request deals with a program overseen by one of Cornell's statutory colleges such as the agriculture lab.

The national Reporters Committee for Freedom of the Press said this was one of many similar cases in recent years in states including Tennessee, North Carolina, Oregon, Kansas and Florida. In a 2002 article, the national group said courts have ruled that private facilities should be subject to public information laws if they do the "functional equivalent" of a government-run entity.

Cornell, however, has a right to protect documents in the "private management sphere." That could include records Alderson sought. He sought records regarding tenants in a planned high-tech park, field research tests of "genetically modified organism crops," compliance with university and federal safety rules and the sources of funding, according to the decision.

The Court of Appeals directed a lower court to review the documents to determine if they should be denied as "ongoing research activities" or records of government spending.

Alderson said Thursday he will argue in another court appearance that most of those research records should be released because they are the result of public funding.

The court made it clear the FOIL request applied because Cornell is a private university with state-funded programs. Alfred University is the other similar school in New York, according to the Commission on Independent Colleges and Universities.