Former newspaper editor sues campus agency for access to bookstore records

College association claims textbook invoices are not covered by state FOI law

NEW YORK -- What started out as a routine story idea led to a lawsuit filed by the former editor of the Hudson Valley College student newspaper.

Tony Gray claims officials from Hudson's Faculty-Student Association, which operates the school's bookstore, are violating the state's Freedom of Information Law by denying The Hudsonian access to invoices for textbooks the store sold to students.

The paper first sought the records in January for inclusion in a story examining bookstore prices and whether the store is overcharging students by inflating book prices. The Hudsonian staff wanted to examine the amount the FSA paid for books in order to compare it to the prices charged.

Gray submitted a FOIL request to Ann Carrozza, the association's records access officer. Carrozza offered to provide edited versions of the invoices -- without the prices.

In a letter to Gray, Carrozza claimed the invoices were exempted under a state law that protects records that "are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the competitive position of the subject enterprise."

Gray appealed Carrozza's decision to Willie Hammett, FSA president, who affirmed Carrozza's opinion that the organization did not have to disclose the records, writing that the information "is valuable to the FSA, would be valuable to its competitors, has been developed as a result of the expenditure of time, effort and money and is the subject of measures to protect its secrecy."

In response to Hammett's letter, Gray sought and received an advisory opinion from the New York State Department's State Committee on Open Government, which sided with the student newspaper.

In the report claiming that the association should be subject to the FOIL law, Robert Freeman, the committee's executive director, wrote that he could find "no ground for denial [that] could justifiably be asserted to withhold any aspect of the invoices."

Gray provided the FSA with a copy of Freeman's report, but he received no response.

"When we exhausted our administrative remedies, we filed suit asking the court to give us relief and force them to turn over the documents," Gray said.

Brian Culnan, the attorney representing Gray, said he thinks the association's two main arguments-that the cost of the books is a trade secret and that disclosing the prices would hurt the bookstore's business-are without merit.

He said that although New York law allows for use of those claims for exemption, it does not apply to the FSA because in order to use the exemption, the competitive harm must occur to some outside agency.

"The agency of whom the freedom of information request is made cannot invoke the exemption for competitive harm when the competitive harm would occur to the business interests of the agency itself," Culnan said.

In her affidavit, Carrozza disputed the classification of the association as an agency.

"Although I recognize that the FSA may be an 'agency' within the meaning of FOIL, it is also an enterprise, and its purchase and sale of books is a commercial enterprise as much as when the purchase and sale of books is done by [any other book-seller]," she said.

Gray said as a result of his suit, the FSA has received a lot of bad publicity that could have been avoided if the association had simply released the invoices when he first requested them.

"It would have gone away by now," Gray said. "Nobody can really understand it other than the fact that they are seriously screwing the students on the price of books, and they are embarrassed to have it made public."

Culnan said the association makes a large profit off the bookstore, and students have a right to know if they are being overcharged.

"One of the ironies in this case is that the people operating the bookstore are the faculty student association, which should be trying to protect the interests of the students, and yet they don't want this information out," Culnan said.

Culnan said the case is pending in the New York Supreme Court of Rensselaer County, where the judge will determine if he will hear oral arguments or rule on the papers submitted.

Fall 2000, reports