Judges' tests may test patience

There are many factors that can lead to unpredictable outcomes when journalists go to court to gain access to the records or meetings of an organization with both public and private characteristics. Here are some of the reasons:

Unclear laws

Most state public record laws make no reference to private contractors, instead relying on vague terms such as “agency” and “public office” that courts interpret in varying ways. Even when laws do address contractors, they often do so in unclear ways.

For instance, the Kansas public records act includes “any...entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state” but does not include “[a]ny entity solely by reason of payment from public funds for property, goods or services of such entity.”

Perplexing court tests

In the absence of clear statutory guidance, many courts have developed complicated “tests” that the public must meet to prove that a contractor or quasi-public body is an agency for the purposes of the public records or open meetings law. But it’s not always clear how the tests should be applied.

For instance, the Connecticut Supreme Court in 1980 devised a four-part test for dealing with public-private entities that took into account whether the entity performs a governmental function, the level of public funding, the extent of government regulation, and whether the entity was created by the government. It found that a publicly funded school charted by the state legislature met all four parts of the test and was therefore subject to the state Freedom of Information Act.

But did that mean an entity had to meet all parts of the test? The state intermediate court thought so when it ruled in 1989 that a bond counsel was not sufficiently regulated by the government and therefore was not subject to the act. It was not until 1991 that the Supreme Court made clear that an agency did not have to meet all four prongs of the test.

Disagreement over parts of the test

Even if a state’s test is in place, judges may disagree about whether a particular group meets each specific part of the test. For instance, Ohio considers four factors, including whether a contractor is extensively regulated by the government. The majority in a December decision found that a group that contracted with a county mental health board did not meet this part of the test because there was no evidence the county board controlled the contractor’s daily operations.

But the dissenting justices disagreed, noting that Nova Behavioral Health’s contract with the county board required its records and data to be available to the county board and mandated that the board be allowed to “monitor and review” the contractor’s performance. These kinds of disagreements can make it difficult for the media and the organizations to judge whether they will meet a complicated multipart test.

Flip-flopping courts

Even if courts have decided cases and established tests regarding privatization and public access, they are subject to change along with the courts’ membership or views on the subject. Though Ohio had established a test in the 1980s that led to many public-private agencies being ordered to open up their records to the press and public, a more conservative court reversed course, developing a new four-part test that was used to deny records to two contractors late last year.