Across the country, government agencies contract with private organizations to carry out tasks that would normally be governmental functions. But because those organizations are private, they are not always bound by state public records laws. Depending upon the state, open records laws may apply if the organization is supported by public money or performs a public function.

The Press-Enterprise in Riverside, Calif., sued late in 2001 to obtain an employee roster and salary data from a corporation formed in a joint venture by a hospital district to run the district’s facilities. But the superior court ruled that the language of the state open meetings act applied only to “nonprofit” boards in this situation. In 2002, the public records law in California was amended to include nonprofit or for-profit corporations whose boards are subject to the open meeting law.

A Texas appeals court in Waco ruled in 1998 that the Brazos Higher Education Authority, Inc., a nonprofit corporation that issues revenue bonds to purchase student loans, is not a governmental body under the public records act.

In 1996, the New Mexico Foundation for Open Government sued Corrections Corporation of America for access to inmate records at the Sante Fe Juvenile Detention Center, which the company operates. An eventual settlement determined that the records are subject to New Mexico’s Public Records Act, Arrest Records Information Act, Children’s Code and other state open-access laws. It also said the company served as a “custodian of public records” as defined in the Public Records Act.

When a reporter for the Lexington Herald-Leader requested property data from several counties, they were told that the counties contract with a private vendor that would charge $500 per county and an additional $500 per town within the counties. The newspaper regularly acquires similar data from the city of Lexington for about $20.

A Kentucky appellate court ruled in1996 that the control of a private entity by a government official does not necessarily convert the entity’s records into public records.

Quasi-governmental agencies

In California, much of the data processing done for state agencies is done by the Teale Data Center. When agencies attempt to provide data that is at Teale, they are charged processing costs, which they pass on to requesters.

In St. Louis, the Regional Justice Information Service was created through a joint agreement between St. Louis and St. Louis County to provide data processing for law enforcement and court information. When the St. Louis Post-Dispatch requested data housed at REJIS, reporters were told that the organization was not bound by the open records law, but they did offer to do a special data run for the newspaper for a significant fee.

In Missouri, quasi-public government bodies do not include urban redevelopment corporations, which are privately owned, operated for profit, and do not expend public funds. Such urban redevelopment corporations are not subject to the Sunshine Law.

A Florida appellate court in Daytona Beach ruled in 1999 that a local chapter of the humane society was subject to the state’s open records laws because of its status as a quasi-public agency.

Statutes
State law varies in how it treats these organizations. In Alaska, records that are “developed or received . . . by a public contractor for a public agency” are “public records” available for inspection and copying.

The Tennessee Supreme Court ruled in 2001 that private companies now performing functions once done by the state must open their books to the public. This ruling came after The (Memphis) Commercial Appeal sought the records of a private company that provided state day-care services.

The Arkansas Freedom of Information Act applies to meetings of the governing bodies of private organizations “supported wholly or in part by public funds or expending public funds.” But in 1990, a court ruled that the mere receipt of public funds is not sufficient to bring a private entity within the FOIA; rather, the question is whether the private group carries on “public business” or is otherwise intertwined with the activities of government.

Many states follow the same rules as Arkansas and require that an organization receive public funds or carry out a government function to be bound by the public records law.

In Kentucky, public officials must constitute the majority of the members of a private organization for it to be covered by the state’s open records law.

State courts have ruled in often divergent ways on this issue, but most states back access, according to a 2000 study by the Florida State University Law Review and more recent court decisions.

Of the 34 states that have dealt with this issue either judicially or legislatively, more than 20 have opted for an approach that favors access to records held by private companies while 11 have adopted a more restrictive attitude.

North Carolina, Oregon, Kansas and Florida have used “functional equivalency” approaches similar to Tennessee’s.

In an Ohio decision, the state’s supreme court said a private consulting company hired by the city of Cincinnati to choose a safety director had to release the names of job candidates. Even though the company declared the list a trade secret, the court held that, if a company carries out a public function, its records are subject to release.

Courts in other states, such as Pennsylvania and New Jersey, have held that private companies need to reveal their records only if they were formed under a state statute or in some way determined by the state to be subject to open access laws.