Entities Subject to the Law

Type:

ESSAY

The federal Freedom of Information Act requires that agencies make available "to any person" certain records, subject to some exemptions, for inspection and copying. Agency, as defined by FOIA, includes “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” However, the definition excludes major governmental bodies that are, therefore, not subject to FOIA, including Congress and federal courts. Similarly, state-level public records laws delineate which offices’ records are subject to disclosure. It is important to make sure that the office from which you are requesting records is actually subject to the law’s provisions. Check out our state open government guide to see what entities are subject to open records in [state].

(1) The Executive Office: On the federal level, the President and his immediate staff and advisors, including the Office of the Vice President and the Office of Administration are not subject to FOIA. However, the Executive Office of the President, which is headed by the President’s White House Chief of Staff and includes the Office of Management and Budget and the Council of Economic Advisors is subject to FOIA. Also subject to FOIA are the various cabinet offices that are within the executive branch. This includes, for example, the U.S. Departments of Justice, Homeland Security, and Treasury. In individual states, records of the governor are generally open to disclosure. While Louisiana wholly exempts its governor's records from the records law and other states, like Vermont and Delaware, recognize a limited executive privilege, the general rule among states is that the governor and other agency heads must comply with the records laws, absent the applicability of a specific exemption. On both the federal and state level, records disclosure, of course, subject to various exemptions.

(2) Federal and State/Local Agencies: Federal bodies like the Federal Communications Commission are also subject to FOIA. Records laws use terms like “agency,” “public agency,” or "public body" in their language and define this to include, as the Connecticut Freedom of Information Act does, as “any . . . office of the state or political subdivision . . . any department, institution, bureau, board, commission, authority . . .” These definitions generally include state and local level agencies and advisory boards and committees created by the agencies. [Check out our State Open Government Guide to see what the law is in [your state] to see how public agency is defined.]

(3) Legislative Branch: The federal FOIA does not apply to Congress. Whether a state legislature is subject to its records laws varies. For example, the legislative body in Delaware, California and Massachusetts are exempt from records laws. Illinois, Kentucky, and Missouri legislatures, however, are subject to the open records laws. Where the legislature is subject to disclosure, the records may still be properly withheld under an exemption to the law. [Check out our State Open Government Guide to see what the law is in [your state] regarding access to legislative records.]

(4) Courts: The federal courts are not subject to FOIA, though court records are generally still accessible under common law and First Amendment rights of access. Applicability of state records laws to the state courts varies. Many laws are silent on the issue and even when courts are specifically included, there often arises a separation of powers issue -- that is, there is an issue where the legislature is viewed to have disproportionate control over the court system when the two branches of government are meant to be wholly separate and of equal power. In Kentucky, the open records law does include court records in its language, however, the state Supreme Court held that the law does not apply to the courts because the legislature does not have authority over courts. Other states, like California and Michigan, specifically exempt the judiciary from the records law. [Check out our State Open Government Guide to see what the law is in [your state] to see whether judicial records are subject to the open records law.]

(5) Private and Quasi-Private Entities: Private entities are generally not subject to federal FOIA. A quasi-private entity is one that, while private, conducts government business. For example, in 2000, the Colorado Court of Appeals determined that a nonprofit corporation was subject to the state open records law in Denver Post Corp. v. Stapleton Development Corp. The company, while private, had been created by the city of Denver and tasked by to redevelop a former airport through the Denver Urban Renewal Authority. The court held the private corporation was subject to the state open records act because the project was of a public nature, on publicly owned land and because the city had significant control over the project and the corporation.

A federal court may also find private or quasi-private activities subject to FOIA if it is determined that the government retains custody and control of the records. No matter how much federal money an entity receives, the U.S. Supreme Court held in Forsham v. Harris that to determine whether an entity's records are public is a question of control. It is not clear, however, how much control over an outside entity is needed to satisfy that test, as the Court in Forsham determined that a mere right to possess and control the records is not enough to subject the entity to FOIA. Records must "have been, in fact, obtained," according to the Court.

States often follow similar rules as the federal government, but many tend to follow a “functional equivalent” test to determine if the records of private or quasi-private entity should be disclosable. That test involves determining whether the entity has become essentially a branch of the government either through financial support or whether the entity performs a task that is traditionally one conducted by government.

In Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., a private company was found subject to the Florida open records act after the West Volusia Hospital Authority transferred to it its duties to operate and maintain local hospitals. "[I]n performing pursuant to the Agreement transferring the authorized function, West Volusia, Inc. was 'acting on behalf of' the Authority."' When "acting on the behalf of" an agency, the Florida Supreme Court held that private entities are subject to the state open records act.

States use differing language and look to different factors, but the Florida case is relatively typical. West Volusia, Inc. was receiving benefits normally reserved for the government -- it was able to exercise the government's right to eminent domain and received tax money to fund its operations. In addition, the company was performing a function that had been previously tasked to a government authority. These factors added up, in the eyes of the court, to the company "acting on behalf of" the government and, therefore, subject to the open records law. [Check out our State Open Government Guide to see what the law is in [your state] in regards to accessing the records of private and quasi-private entities.]

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March 30, 2011 Wyoming high court affirms public’s right to salary data

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March 22, 2011 Bailout records not yet disclosed despite high court denial

March 14, 2011 Survey: Half of agencies abide by Obama FOIA policy

November 2, 2010 Alabama Court: Hospital sales subject to open records act

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