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The Freedom of Information Law requires the State University of New York to turn over faculty book lists to a company that seeks to compete with the on-campus bookstore, the Appellate Division, 3rd Department, held last week. Unanimously, the court found that to the extent public university professors maintain course syllabi or written book lists, those records must be disclosed. The ruling in Mohawk Book Co. v. State University, 89200, stems from a longstanding effort by an independent college textbook retailer to compete with an on-campus bookstore run by Barnes & Noble College Bookstores Inc. Mohawk Book Co., which operates a bookstore in Albany under the name of Mary Jane Books, turned to the Freedom of Information Law (FOIL) when informal attempts to obtain faculty-recommended and required textbooks were rejected. Last year, New York Supreme Court Justice E. Michael Kavanagh of Kingston dismissed the petition after finding no evidence that either the State University at Albany (SUNYA) or its professors maintain book lists. Kavanagh held that even if the professors did have lists, FOIL does not require the university to collect and disclose that information. On appeal, the 3rd Department agreed that there is no evidence in record that the university has a central list of the requested information. However, it did find proof that faculty members keep book lists, and ruled that the information constitutes a public record under FOIL “notwithstanding the fact that they are not centrally maintained or collected” by the college administration. “That SUNYA does not require faculty to generate or maintain book lists is irrelevant for purposes of determining whether they are records under FOIL, as the statute has long been interpreted as requiring only that the documents be held or kept by the agency,” Justice John A. Lahtinen wrote for the court. He was joined by Presiding Justice Anthony V. Cardona and Justices Thomas E. Mercure, D. Bruce Crew III and Karen K. Peters. The court distinguished this case from Matter of Encore College Bookstores v. Auxiliary Service Corp of the State University of New York at Farmingdale, 87 NY2d 410. In that 1995 case, Chief Judge Judith S. Kaye wrote for the Court of Appeals that material received by a corporation providing services to a state university is presumptively obtainable under FOIL. However, the court also found a FOIL exemption because release of the book list sought would substantially injure the competitor. Here, the 3rd Department observed that Mary Jane Books did not seek access to Barnes & Noble’s master list, as did the petitioner in Encore. “We find no statutory exemption applicable or anything in the holding in Encore which would prevent its disclosure even if the book list that is in the possession of the faculty member happens to be on a form provided by Barnes & Noble,” Justice Lahtinen wrote. “We agree with petitioner that the individual course book lists herein sought were prepared by faculty members and not Barnes & Noble and therefore, are disclosable under FOIL.” Appearing were: Brian M. Culnan of Iseman, Cunningham, Riester & Hyde in Albany for Mohawk Book Co.; Assistant Solicitor General Frank K. Walsh for the state university; and Suzanne M. Berger of Robinson, Silverman, Pearce, Aronsohn & Berman in Manhattan for Barnes & Noble.

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