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Hospital not subject to open government laws

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NEWS MEDIA UPDATE   ·   FLORIDA   ·   Freedom of Information   ·   April 3, 2006

NEWS MEDIA UPDATE   ·   FLORIDA   ·   Freedom of Information   ·   April 3, 2006

Hospital not subject to open government laws

  • An appellate court rejected a newspaper’s claim that a private hospital should have to release its records because it acts on behalf of a public authority.

April 3, 2006  ·   A once-public Florida hospital now owned by a private corporation does not have to open its meetings and records to the public because it is no longer governed by a public authority with taxing powers, a state appeals court has ruled.

The March 24 ruling is the latest in a decade-long legal struggle between Memorial Hospital-West Volusia Inc. and the Daytona Beach News-Journal, which has fought to keep the corporation from closing Florida Hospital DeLand’s meetings and records.

A three-judge panel of Florida’s Court of Appeal in Daytona Beach unanimously reversed a lower court’s 2005 ruling in favor of the newspaper. Chief Judge Robert J. Pleus Jr. wrote for the appellate court that the sale of Florida Hospital DeLand from a hospital authority taxing district to the private corporation in 2000 ended the hospital’s obligation of openness.

“Since the sale, Memorial is no longer ‘acting on behalf of’ the Authority and therefore is not subject to the Public Records Act and Sunshine Law,” Pleus wrote.

Before Memorial bought Florida Hospital DeLand from the authority in 2000, it leased the hospital for about six years. During that time, the corporation closed the hospital’s meetings and records, claiming it was not subject to the same open government laws that applied to the public authority. The News-Journal disagreed and sued to gain access.

After an initial decision in favor of the hospital was reversed, the state Supreme Court ruled 6-1 in 1999 that the hospital was subject to open meetings and records laws because it was acting on behalf of the authority by providing medical services to people in the district.

After the sale, the corporation sued the newspaper, claiming it was no longer acting on behalf of the authority and was not subject to open government laws.

The ruling makes Florida Hospital DeLand “as private as Joe’s gas station down on the corner,” said Jon Kaney, who represents the newspaper.

The ruling focuses on form — the ownership — rather than the substance — serving the public — of what the hospital does, he said.

The judges applied a seven-part test to determine whether Memorial was still acting on behalf of the public authority. Factors included the authority’s financial interest in the hospital, whether the private corporation is performing a governmental function and whether the activity occurs on public property, among others.

Despite his disappointment with the decision, Kaney said even a win might not have forced the hospital to comply with the Florida’s open government laws. The state Legislature was poised to pass a bill that would have reversed the outcome if the newspaper won, Kaney said.

This is not the first time the Legislature has addressed the issue. Several years ago, while the Memorial case was pending in the state Supreme Court, legislators approved bills that would exempt private corporations that lease public hospitals from open records and meetings laws. Although the News-Journal protested the constitutionality of that legislation, the high court declined to review it at the time of the 1999 decision. A circuit court judge, however, later ruled that the law was too broad to meet the state’s constitutional requirements for exemptions to open government laws. Florida’s Constitution guarantees access to government records.

Now, the Legislature is considering a bill that would make corporations that purchase public hospitals exempt from open government laws. That means the focus of the struggle to keep these types of records open to the public probably will shift, Kaney said.

“The real issue here is the constitutionality of that exemption and, I’m afraid to say, the viability of the constitutional standard” that requires public necessity to justify open-government exemptions, he said. “If [the standard] continues to be watered down and gutted . . . we may have to send the signature gatherers back into the public parking lots to amend the Constitution.”

In addition to rejecting the newspaper’s argument, the appeals court ruled against Tanner Andrews, a DeLand citizen who argued that because Memorial violated the Sunshine Law when it decided in closed meeting to buy the hospital, the sale should be void.

That violation was “cured” by subsequent public meetings held by the authority, the court said.

(Memorial Hospital-West Volusia Inc. v. News-Journal Corp.; Jon Kaney, Cobb & Cole, Daytona Beach, Fla.)AB

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