4. Nongovernmental bodies receiving public funds or benefits
By its terms, the Alabama Open Meetings Act applies only to "governmental bodies." Ala. Code § 36-25A-1(a). We know of no reported case law or Alabama attorney general opinion that addresses the question whether the Alabama Open Meetings Act could apply, in some circumstances, to nongovernmental bodies that receive public funds or benefits.
The OMA itself does not cover non-governmental bodies receiving public funds or benefits. The act covers only meetings of "a governmental body of a public entity of the state." A "public entity" is defined to mean an entity of the state or a political subdivision of the state, and a "governmental body" is defined to include bodies such as assemblies, councils, boards, commissions and committees "of a public entity." The key, then, to determining whether a body receiving public funds or benefits is covered by the Open Meetings Act or not is normally whether it is a governmental body of a public entity or not. If a group of individuals who would otherwise simply be "private citizens" are appointed as a commission, board, task force or other similar body by the mayor of a borough or city, or the superintendent of a school district, their gatherings would presumably be governed by the OMA, and would either be required to be open or not depending upon whether they constituted meetings within the definitions of AS 44.62.310(h)(2).
While the 1994 amendments to the OMA did not change the law in this respect, it did eliminate language that may have been confusing on this score, referring to entities "supported in whole or part by public money or authorized to spend public money." A careful reading of this previous wording showed that it modified "of the state or local government." So, whether construing the present or former language of the OMA, Alaska Native corporations, local non-profit social service agencies, arts groups and other non-government recipients of public money are not covered by the act. There is probably no reason, however, why a government funding source cannot condition receipt of public funds upon compliance with the provision of state open meetings and open records laws, or on similar requirements for public accountability. For example, the Alaska Public Broadcasting Commission has required this of non-profit educational and community public broadcasting corporations that receive funding from it, and some communities have proposed inserting such provisions in grants to major art groups. Various Native councils and tribal organizations are treated by the state as entities eligible to serve as contractors with the state to deliver services in the "unincorporated communities," for purposes such as revenue-sharing, community capital project matching grant programs, and village safe-water programs. Regulations governing the state revenue-sharing program, e.g., require these contractors to have held a public meeting to give residents an opportunity to express their ideas and preferences for use of the money, and must have posted notice of the meeting in three public places at least 15 days before the meeting. 19 AAC 30.055.
(1) The FOIA applies to meetings of the governing bodies of private organizations “supported wholly or in part by public funds or expending public funds.” Ark. Code Ann. §§ 25-19-103(6), 25-19-106(a). See N. Cent. Ass’n of Colleges & Schools v. Troutt Bros. Inc., 261 Ark. 378, 548 S.W.2d 825 (1977) (educational accrediting organization); Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985) (nonprofit corporation that received federal funds); Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989) (private body that regulates high school sports), overruled on other grounds by Harris v. City of Ft. Smith, 366 Ark. 277, 234 S.W.3d 875 (2006).
(2) 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. City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); Ark. Op. Att’y Gen. Nos. 2001-069, 2000-039, 99-090, 98-139, 97-148, 96-123, 96-116, 96-013, 94-023, 92-205. Compare Kristen Inv. Props., LLC v. Faulkner Cnty. Waterworks & Sewer Pub. Facilities Bd., 72 Ark. App. 37, 32 S.W.3d 60 (2000) (FOIA applies to volunteer fire department that received fees from public fire protection district, as well as governmental loans, and “performed a service routinely provided by government”), with Sutton v. Ballet Ark. Inc., CIV 00-3066 (Pulaski County Cir. Ct. 2000) (ballet company that received some financial support from the state and county was not subject to the FOIA because its activities “do not appear to be intertwined to a government function so much that its activities are tantamount to government action”).
(a) A private entity that receives public funds for services rendered to a government agency is subject to FOIA when the services could have been performed by public employees. Swaney v. Tilford, 320 Ark. 652, 898 S.W.2d 462 (1995) (accounting firm); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990) (law firm); Kristen Inv. Props. v. Faulkner Cnty. Waterworks & Sewer Pub. Facilities Bd., 72 Ark. App. 37, 32 S.W.3d 60 (2000) (volunteer fire department). See, e.g., Ark. Op. Att’y Gen. Nos. 2000-260 (nonprofit economic development corporation that receives sales tax revenue), 2000-039 (nonprofit corporation that provides services for developmentally disabled individuals), 99-350 (probation records maintained by private contractor working for a municipal judge), 97-148 (nonprofit corporation that leases hospital facility from county), 96-185 (private company that operates state prison), 96-116 (nonprofit corporation that leases hospital facility from county), 95-273 (area agency on aging, a nonprofit corporation, operates under close supervision and direction from the government and performs functions that would otherwise be performed by the government), 95-121 (chamber of commerce that provides services to city advertising and promotion commission), 94-023 (chamber of commerce engaged in economic development on city’s behalf), 92-220 (nonprofit corporation that operated public access cable channel under contract with city). But see Ark. Op. Att’y Gen. Nos. 96-185 (construction company that builds state prison is not subject to FOIA), 95-353 (FOIA does not apply to nonprofit corporation that receives public funding to operate aerospace education center, where neither the corporation’s budget nor activities were subject to review by any government body), 83-163 (private hospital that receives Medicare and Medicaid payments is not subject to FOIA).
(b) The FOIA will generally be inapplicable to a private entity that sells supplies, equipment, and other products to a government agency. With respect to services, there is little concern that government might circumvent the FOIA by hiring private contractors. However, this concern is not present when goods are involved, since government cannot produce all of the goods it needs to function and, as a practical matter, has no choice but to purchase materials from the private sector. Ark. Op. Att’y Gen. No. 96-123.
(3) Direct receipt of public funds by the private organization is necessary to trigger the FOIA. Indirect support, such as the use of public property without charge, is not sufficient. Sebastian Cnty. Chapter of Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Ark. Op. Att’y Gen. Nos. 97-148, 96-267, 96-196, 96-116, 95-077.
(4) A private organization that receives partial financial support from government is partially subject to the FOIA. The act applies only to meetings of the organization’s governing body that are relevant to the task for which it has been hired by government or has been given a government grant. Ark. Op. Att’y Gen. Nos. 96-290, 94-023.
(5) Meetings of the governing body of private organization held after its public funding has come to an end are not covered by the FOIA. Ark. Op. Att’y Gen. No. 94-023. However, FOIA application does not abate simply because a private contractor refuses to accept public funds, absent contract termination or legislative action. Ark. Op. Att’y Gen. No. 2004-223.
Any board, commission, committee or similar multimember body, whether the multimember body is organized and operated by the state body or by a private corporation, is subject to the Bagley-Keene Act if: (1) it receives funds provided by a state body, and (2) it includes a member of a state body serving in his or her official capacity of that state body. Cal. Gov't Code § 11121(d).
A body that governs a private corporation or entity is subject to the Brown Act if: (1) it is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the body, or (2) it receives funds from the local agency and it includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency. Cal. Gov't Code § 54952(c). See, e.g., Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 869-73, 104 Cal. Rptr. 2d 857 (2001); 85 Ops. Cal. Att'y. Gen. 55 (2002) (private, nonprofit corporation that received funds from school district and had on its corporate board one of district's trustees with full voting rights, and was created by the City, which lawfully delegated authority to it to operate an educational access channel, was subject to CPRA and opening meetings laws).
No body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member can defeat the meeting requirements by changing the voting status of the full voting member to a nonvoting member. Cal. Gov’t Code § 54952(c)(2).
Under prior law, unless a board or other body was specifically declared to be a state agency or authority by its organic legislation, it was not subject to the Sunshine Law. James v. Board of Comm'rs of Denver Urban Renewal Authority, 200 Colo. 28, 611 P.2d 976 (1980). Under the 1991 amendments, any public or private entity to which the state or a political subdivision of the state, or an official thereof, has delegated a governmental decision-making function is subject to the Sunshine Law. Colo. Rev. Stat. §§ 24-6-402(1)(a) and 24-6-402(1)(d). Persons on the administrative staff of the state or local public body, however, are exempted.
If a board or body does not meet the above definition, its meetings are not open to the general public in Colorado.
The level of governmental funding is relevant to the determination of whether a nongovernmental body is subject to FOIA. See above. See also Bd. of Trustees v. FOIC, 181 Conn. 544, 436 A.2d 266 (1980) (creating a four-part functional equivalent test to determine whether hybrid public/private entities are subject to FOIA).
Nongovernmental bodies that are supported in whole or in part by public funds, or expend or disburse public funds, including grants, gifts or similar disbursals, or are impliedly or specifically charged by any other public official body or agency to advise or to make reports, investigations or recommendations are covered by the Act. 29 Del. C. § 10002(c). But see Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995).
District of Columbia
The Open Meetings Act does not apply to "[g]overning bodies of individual public charter schools." D.C. Code Ann. § 2-574(3). Like District of Columbia courts, governing bodies of individual charter schools are excluded from the definition of "public body." Id. The Act otherwise does not discuss its applicability to nongovernmental bodies receiving public funds or benefits.
The statutory definition of “agency” includes “any other public or private agency, partnership, corporation or business entity acting on behalf of the State.” However, private organizations receiving state and/or federal funds may not fall under the Sunshine Law merely because of the receipt of public money. See News & Sun Sentinel Company v. Schwab, 596 So. 2d 1029 (Fla. 1992); Quintana v. Cmty. P’ship for Homeless Inc., 651 So. 2d 1287 (Fla. 3d DCA 1995) (non-profit not subject to Sunshine Law); Op. Att’y Gen. Fla. 78-161 (1978) (receipt of public funds by private non-profit corporation under contract with district mental health board, does not, standing alone, subject corporation to section 286.011); Op. Att’y Gen. Fla. 74-22 (1974); see also Op. Att’y Gen. Fla. 76-194 (1976) (Orlando-Orange County Industrial Board is not subject to the Sunshine Law, notwithstanding the receipt of contributions from governmental agencies).
The Act expressly applies to “any nonprofit organization to which there is a direct allocation of tax funds made by the governing body of any agency … which constitutes more than 33 1/3 percent of the funds from all sources of such organization.” O.C.G.A. § 50-14-1(a)(E). But the Act also provides that such an allocation shall not be sufficient to include within the Act’s coverage “hospitals, nursing homes, dispensers of pharmaceutical products, or any other type organization, person, or firm furnishing medical or health services to a citizen for which they receive reimbursement from the state” or “a subagency or affiliate of such a nonprofit organization from or through which the allocation of tax funds is made.”
In addition, private entities that operate "as vehicles for public agencies," whether nonprofit or otherwise, are subject to the Act regardless of the amount of funding they receive from the public. Nw. Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 461 S.E.2d 297 (1995).
The Sunshine Law's definition of "board" encompasses only entities of "the State or its political subdivisions which [are] created by constitution, statute, rule, or executive order to have supervision, control, jurisdiction or advisory power over specific matters and which [are] required to conduct meetings and to take official actions." Haw. Rev. Stat. § 92-2 (emphases added). The Sunshine Law implies that it cannot be applied to nongovernmental bodies receiving public funds or benefits if they have not been created under some authority of the State. Organizations not required to hold open meetings under the Sunshine Law may, nevertheless, be required to disclose records considered in those meetings or records of related activities to the extent that they fall within the UIPA definition of "agency" even though the UIPA may exempt from disclosure the actual records of meetings not open to the public. Haw. Rev. Stat. § 92F-12(a)(16) (requiring disclosure of information from "a proceeding open to the public").
The question of whether nongovernmental bodies that receive public funds or benefits are subject to the provisions of the Idaho Open Meeting Law has not been addressed by any appellate court in Idaho. The application of the Open Meeting Law to such bodies probably turns upon whether the body was created by some public act (such as a statute, ordinance or other legislative act), rather than upon whether governmental officials who might otherwise be subject to the act are included in its membership or upon whether public funds are received by the body. Hence, a meeting of State Department of Health and Welfare officials that results in state grant monies being provided to a privately operated shelter home would probably be subject to the Open Meeting Law. However, a meeting of the board of the privately run shelter home (even if the board included one or more of those same officials which had helped make the decision to send public grant monies to the shelter home) would probably not be subject to the law since the shelter home does not exist or was not created by the virtue of any statute, ordinance or other public act.
There are many private agencies that receive government grants or some other type of funding, such as arts councils, alcohol abuse programs, women’s shelters and other social service programs. It is doubtful that such bodies would be considered public bodies for the purposes of the Open Meetings Act. Whether a particular group’s meetings would be subject to the Act would depend on whether the particular agency would be considered an "advisory" body, or a "subsidiary" body of a public body, including — but not limited to — committees and subcommittees supported in whole or in part by tax revenue or which expend tax revenue. Such groups are covered by the Act’s definition of public body. See 5 ILCS 120/1.02.
If the body is subject to budget review by the State Board of Tax Commissioners or the governing body of a local government agency, or an audit by the State Board of Accounts, it is subject to the Act. Ind. Code § 5-14-1.5-2(a)(3).
In 2007, the statute was amended to clarify that providers of goods and services are not public agencies subject to the Open Door Law if they meet the following criteria: (1) the provider receives public funds through an agreement with the public entity, in exchange for services, goods, or other benefits; (2) the amount of fees received does not involve a consideration of tax revenues of the public entity; (3) the public entity negotiates the fee; (4) the public entity is billed for services or goods actually provided; and (5) the provider is not required to be audited by the state board of accounts. Ind. Code § 5-14-1.5-2.1.
A non-profit organization is subject to KOMA if it receives or expends public funds; is subject to control of governmental units; and acts as a governmental agency in providing services or has independent authority to make governmental decisions. See, e.g., Kan. Att’y Gen. Op. 1994-111.
The Attorney General has found that the following non-profit organizations are covered by KOMA under K.S.A. 75-4318(a): McPherson County Diversified Services Inc.. (Kan. Att’y Gen. Op. 1979-284); Area agencies on aging (Kan. Att’y Gen. Op. 79-219); Memorial Hospital Association (Kan. Att’y Gen. Op. 1985-49); Hospital Board of Trustees are subject to KOMA. (Kan. Att’y Gen. Op. 1986-38); Southwest Developmental Services Inc. (Kan. Att’y Gen. Op. 1994-111); Economic Opportunity Foundation (Kan. Att’y Gen. Op. 84-10); Three Rivers, Inc. (Kan. Att’y Gen. Op. 87-143); Cowley County Diversified Services (Kan. Att’y Gen. Op. 87-188); and HELP, Inc. (Kan. Att’y Gen. Op. 88-27).
The Kansas Supreme Court found that a notification center furnished public functions, and the legislature was permitted to treat the corporation differently from other private corporations not subject to Open Records Act and Open Meetings Act. Kansas One-Call Sys., Inc. v. State, 294 Kan. 220, 274 P.3d 625 (2012).
Mere receipt of public funds is insufficient to bring an otherwise private nonprofit corporation within the KOMA. Kan. Att’y Gen. Op. 2001-02. The Attorney General has found that the following non-profit organizations are not subject to KOMA: Private nursing home receiving public funds (Kan. Att’y Gen, Op. 1979-221); University of Kansas and Wichita State University Endowment Associations (Kan. Att’y. Gen. Ops. 82-172 and 80-239); Planned Parenthood (Kan. Att’y Gen. Op. 81-253); Hutchinson Cosmosphere (Kan. Att’y Gen. Op. 82-256); electric cooperatives (Kan. Att’y Gen. Op. 85-175); Parsons Chamber of Commerce (Kan. Att’y Gen. Op. 89-149); K-10 Corridor Development, Inc. (Kan. Att’y Gen. Op. 94-42); Koch Commission (Kan. Att’y Gen. op. 94-55); Mid-America Commercialization Corporation (Kan. Att’y Gen. Op 1994-99); Kansas Venture Capital Inc. (Kan. Att’y Gen. Op. 1994-107); Consensus Estimating Group (Kan. Att’y Gen. Op. 94-93); Prairie Village Economic Development Commission (Kan. Att’y Gen. Op. 99-64); Hesston Area Senior Center (Kan. Att’y Gen. Op. 2001-02); Sheltered Living, Inc. (Kan. Att’y Gen. Op. 2004-34); and Kansas State University Student Senate (Kan. Att’y Gen. Op. 77-174).
The Kansas Supreme Court found that a non-profit operating a county hospital was not subject to KOMA under the facts of that case. There, the organization leased hospital for $1.00 per year and received $228,000 from the county mill levy budgeted by county hospital board of trustees, about 4.8% of total revenues; the court held this was a limited receipt of public funds. Memorial Hospital Ass’n Inc. v. Knutson, 239 Kan. 663 (1986).
Hospital board discussions regarding risk management and peer review are not required to be held in accordance with KOMA. See Kan. Att’y Gen. Op. 89-42.
Receipt of public funds by private entities does not convert those entities into public agencies for purposes of the Open Meetings Act. See Ky. Rev. Stat. 61.805(2). However, receipt of public funds by private entities may convert the entities into public agencies for purposes of the Open Records Act. See 61.870(1)(h).
Nongovernmental bodies receiving public funds are covered if they fall within the definition of a “public body” in La. Rev. Stat. Ann § 42:13. See Guste v. Nicholls College Foundation, 564 So.2d 682 (La. 1990); In re Edward Wisner Donation, 150 So.3d 391, (La.App. 4th Cir. 2014), writ denied, 159 So.3d 463 (La. 2014) (charitable trust advisory committee, formed by city council, was a “public body” subject to Open Meetings Law; Wayne v. Capital Area Legal Servs. Corp., 145 So.3d 427, (La.App. 1st Cir. 2014), writ denied, 149 So.3d 243 (La. 2014) (non-profit corporation that provided legal services to low-income persons not a “public body” so not subject to Open Meetings Law, See also Louisiana Insurance Guaranty Ass'n v. Commission on Ethics for Public Employees, 656 So. 2d 670 (La. App. 1st Cir.), writ denied, 662 So. 2d 467 (La. 1995) (Louisiana Insurance Guarantee Association subject to Open Meeting Law by La. Rev. Stat. Ann § 22:2056); Op. Att'y Gen. 95-321 (community action agency is private, nonprofit corporation, but subject to Open Meeting Law by statute. La. Rev. Stat. Ann. § 23:62); Op. Att'y Gen. 82-529 (meetings of the New Orleans Citywide Development Corporation (NOCDC), a nonprofit corporation formed for the advancement of economic development which makes loans to individuals and businesses, are covered by the Open Meeting Law because NOCDC receives city funds and possesses policy-making and advisory functions); Op. Att'y Gen. 89-352 (meetings of public university faculty senate are covered); Op.Att'y Gen. 94-333 (the LSU student government is a public body for purposes of Open Meeting Law). In 1992, over the strenuous opposition of the Louisiana Press Association, the Legislature enacted a special statute that may be construed as having exempted from the Open Meeting Law certain public university alumni associations and support foundations. The new statute declares that if such an organization meets a porous three-part test, it "shall not be deemed to be a public or quasi-public corporation . . . for any purpose whatsoever . . ." La. Rev. Stat. Ann. § 17:3390. See also Op. Att'y Gen. 91-203 (LSU "Tiger Athletic Foundation" held to be a "private, nonprofit corporation"); Op. Att’y Gen. 14-106 (Greater New Orleans Sports Foundation and New Orleans Super Bowl XVII Host Committee, Inc. not subject to Open Meetings Law even though they receive some public funding.
The Act applies to the board of directors of a non-profit, non-stock private corporation that provides statewide non-commercial public broadcasting services and any of its committees and subcommittees. 1 M.R.S.A. § 402(2)(E). This is intended to subject the Maine Public Broadcasting board of directors to the act. Membership meetings of organizations whose members are governments or government agencies, such as the Maine Municipal Association, also must be held in public. 1 M.R.S.A. §402(2)(D).
Certain nongovernmental bodies receiving public funds or benefits may be subject to the Act. Whether an entity or individual, individually or collectively, qualifies as “an agency or public official” for purposes of the Freedom of Access Act, turns on “the function that the entity performs.” See Turcotte v. Humane Society of Waterville, 2014 ME 123,¶¶ 6-7, 103 A.3d 1023; Moore v. Abbott, 2008 ME 100, ¶ 10, 952 A.2d 980; Dow v. Caribou Chamber of Commerce & Indus., 2005 ME 113, ¶ 12, 884 A.2d 667, 670; Town of Burlington v. Hospital Administrative District No. 1, 2001 ME 59, ¶¶ 16-19, 769 A.2d 857. The four factors considered in making that determination are:
(1) Whether the entity is performing a governmental function;
(2) Whether the funding of the entity is governmental;
(3) The extent of governmental involvement or control; and
(4) Whether the entity was created by private or legislative action.
Moore, 2008 ME 100, ¶ 11. “[A]lthough these factors should be considered and weighed, an entity need not strictly conform to each factor to become a public agency or public official.” Id.
If the entity is a public body as defined by the Act, it is subject to the provisions of the Act, unless it is exercising an administrative, judicial or quasi-judicial function. § 3-103(a). The Act expressly applies to public bodies that are considering zoning matters or the granting of licenses or permits. § 3-103(b); see also Tuzeer v. Yim, LLC, 201 Md. Appl 443 (2011) (regarding use permit); Handley v. Ocean Downs, LLC, 151 Md. App. 615 (2003) (regarding special exception). The Act applies to any multimember board, commission, or committee, appointed by the Governor or the chief executive authority of a political subdivision of the State, if the entity includes in its membership at least two individuals not employed by the State or political subdivision of the State. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State. § 3-301(h)(2)(ii). However, the fact that a private entity receives or administers government funds is alone not dispositive. For example, the OMCB concluded that a private entity that provided services to a government agency and was regulated by that agency was not a “public body.” Id. at 204; but see Andy’s Ice Cream v. City of Salisbury, 125 Md. App. 125, 154-55 (1999) (finding that a private corporation organized under government control and carrying on a public business is at least quasi-governmental and should be subject to the open meetings law). To resolve such uncertainties, the OMCB considers whether the privately-incorporated entity is subject to the control of a governmental entity, such as when a governmental entity has the power to dissolve the privately-incorporated entity or appoint its board. 9 OMCB Opinions 246, 252-54 (2015) (discussing cases).
If a body’s members are not elected or appointed by government officials, the Open Meeting Law probably does not apply. See District Attorney for Northern Dist. v. Board of Trustees of Leonard Morse Hospital, 389 Mass. 729, 452 N.E.2d 208 (1983); Bello v. South Shore Hospital, 384 Mass. 770, 775, 429 N.E.2d 1011, 1015 (1981).
See generally, Mich. Comp. Laws Ann. § 15.263(1) ("lessee[s] . . . performing an essential public purpose and function pursuant to the lease agreement are included in definition of a public body); see also Stablein v. Schuster, 183 Mich. App. 477, 455 N.W.2d 315, 318 (1990) ("Plaintiff's claim that the school board meeting was not a public and official proceeding has no merit."); Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 192 Mich. App. 574, 581, 481 N.W.2d 778, 782 (1992) ("There is no doubt that defendant [University of Michigan Board of Regents] is a public body as defined in the OMA."); Jackson v. E. Mich. Univ. Found., 215 Mich. App. 240, 544 N.W.2d 737 (1996) (body primarily funded by state or local authority is a public body under FOIA and OMA); 2001 Op. Att'y Gen No. 7087 (2001) (the board of trustees of a retirement system established and administered by a home rule city is public body subject to OMA).
In Itasca County Board of Commissioners v. Olson, 372 N.W.2d 804, 807 (Minn. Ct. App. 1985), the Court of Appeals held that the board of a publicly owned hospital was covered by the Open Meeting Law. While the court made note of the fact that the county board had delegated its management responsibility to the hospital board, it did not specifically address whether such action was a factor in the court’s holding.
But see Minnesota Daily v. University of Minnesota, 432 N.W.2d 189 (Minn. Ct. App. 1988) in which the Court of Appeals found that the Open Meeting Law was not applicable to meetings of a committee that narrowed a list of candidates for the position of university president.
The Open Meeting Law does not refer to nonprofit corporations, even those created by the legislature. However, the laws creating certain nonprofit corporations (e.g. Minnesota Technology Inc.) may specify that these groups are subject to the Open Meeting Law.
In 1986, an Attorney General's Opinion stated that the Open Meeting Law does not apply to nonprofit corporations, even if they are funded primarily with public money, are appointed by public officials, and perform services exclusively for governmental units. Minn. Op. Att'y Gen. 92A-30 (Jan. 29, 1986).
The Act covers entities both "created by statute or executive order" and "supported wholly or in part by public funds" or that expends public funds. § 25-41-3(a). Private or quasi-public entities that do not meet this test are not covered. See Op. Att'y Gen. September 21, 1989 to Cecil Brown (non-profit corporation receiving state money not covered); Op. Att'y Gen. Dec. 4, 1987 to Sen. Irb Benjamin (non-profit community action agency corporation not created by statute or executive order so not a "public body.") Op. Att'y Gen. Mar. 9, 1994 to Jerry L. Mills, City Attorney of Ridgeland (non-profit baseball corporation, even though partially funded by the City, is not covered because it is not created by statute or order).
County agricultural societies, which are private corporations that receive tax funds, are public bodies subject to Open Meetings Act. Nixon v. Madison Co. Ag. Soc'y, 217 Neb. 37, 348 N.W.2d 119 (1984). Rule of cited case appears to have broad application. The Open Meetings Act includes within the definition of "public body" "instrumentalities exercising essentially public functions." Neb. Rev. Stat. §84-1409(1)(vi).
The receipt of public funds will not automatically make the organization a public body. A nongovernmental body composed of private citizens will be considered to be a public body though if it performs any administrative, advisory, executive, or legislative function of state or local government and it expends or disburses or is supported in whole or in part by tax revenue.
OPMA only applies to a commission, authority, board, council, committee or group of two or more persons "organized under the laws of" New Jersey. Unless there is a statute, ordinance or regulation creating the organization, it is not subject to the provisions of the Sunshine Law. N.J.S.A. 10:4-8a
Unlike the New Mexico Inspection of Public Records Act, whether a body is subject to the Open Meetings Act does not depend entirely on whether the entity receives public funds or benefits but rather on whether the entity is a board, commission, administrative adjudicatory body, or other policymaking board of a state agency, any agency or authority of any county, municipality, district, or other political subdivision or has received any such powers by delegation and whether the body makes "public policy." NMSA 1978 § 10-15-1(B); see also Raton Pub. Serv. Co. v. Hobbes, 1966-NMSC-150, ¶ 8, 417 P.2d 32 (decided under prior law) (receipt of public funds is determinative). Agencies are subject to the Open Meetings Act if the body is "cloaked with policymaking and decision making powers" by the entity with ultimate authority. See N.M. Att'y Gen. Op. 90-27. (The Las Cruces Selection Advisory Committee was a policy body subject to the Open Meetings Act because its purpose was to narrow the list of potential contractors by reviewing qualifications and reporting to the City Council.)
The OML’s definition of “public body” includes entities “performing a governmental function for the state or for an agency or department thereof, or for a public corporation.” N.Y. Pub. Off. Law § 102(2) (McKinney 1988). Thus, nongovernmental bodies receiving public funds or benefits may be held subject to the OML when performing a governmental function. See, e.g., Matter of Reese v. Daines, 62 A.D.3d 1254, 877 N.Y.S.2d 801 (4th Dep’t 2009) (finding not-for-profit corporation performing a public function was subject to OML’s requirements); Holden v. Bd. of Trustees, 80 A.D.2d 378, 440 N.Y.S.2d 58 (3d Dep’t 1981) (meetings of the Cornell University board of trustees were held subject to the OML when the board’s deliberations concerned its operation of statutory public colleges because, in this instance, the board was performing a governmental function).
Generally speaking, the source of funds has nothing to do with determining whether a body is a “public body” for purposes of the Open Meetings Law. However, the Court of Appeals ruled in Chatfield v. Wilmington Housing Finance and Development Inc., 166 N.C. App. 703, 603 S.E.2d 837 (2004), that loss of government funding was one factor to consider in determining if a housing agency was subject to the Open Meetings Law. Generally speaking, however, nongovernmental bodies are not covered, regardless of whether they receive government funds.
Organizations or agencies supported in whole or in part by public funds, or expending public funds, are covered by the law. N.D.C.C. § 44-04-17.1(13).
“Public funds” are defined as cash and other assets with more than minimal value received from the state or from any political subdivision of the state. N.D.C.C. § 44-04-17.1. An organization or agency “supported in whole or in part by public funds” means an organization or agency that has received public funds exceeding the fair market value of any goods or services given in exchange for the funds. Id. The funds may be grants, membership dues, fees, or any other type of payment. Id. According to the North Dakota attorney general, a nongovernmental organization expends public funds when it receives and uses a direct appropriation from a governmental entity, or when it manages a pool of public funds on behalf of one or more public entities. See N.D. Op. Att’y Gen. 96-F-18 (1996); N.D. Op. Att’y Gen. 99-O-02 (1999).
The statute does not expressly address nongovernmental bodies receiving public funds. Where a nongovernmental body acts pursuant to authority delegated by a governmental body and acts for a public purpose, the body may be subject to the sunshine statute, regardless of whether it actually received public funds. State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Ass'n of Greater Toledo, 61 Ohio Misc. 2d 631, 582 N.E.2d 59 (1990); see State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 531 N.E.2d 313 (1988) (open records statute compels nonprofit corporation's board of trustees to open minutes of the board's meetings about managing a municipal hospital leased by the corporation from a city for no rent).
A private, non-profit hospital is not a public institution although it receives public tax funds, where the hospital had complete control of its operations. State ex rel. Hardin Cty. Publ'g Co. v. Hardin Mem'l Hosp., No. 6-02-04, 2002 WL 31323400 (Hardin Oct. 18, 2002) (finding that meetings held by controlling body of hospital were not governed by Sunshine Law).
All boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, or any entity created by a public trust, task forces or study groups in the State of Oklahoma supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property are public bodies for purposes of the Act. 25 O.S. § 304.1. The term “public body” is broad enough to cover non-profit entities or trade associations if the private entity meets the definitional requirements of the Act. 2017OK AG 18. Thus, the non-profit Oklahoma Sheriff’s Association was found to be a public body when performing tasks that were supported in whole or in party by public funds. Id. Private organizations are subject to the Act if (1) they do not submit itemized invoices for goods or services provided and instead receive a direct allocation of public funds from tax or other revenues or (2) there is no quid pro quo between the amount of goods, and services provided and the funds received, i.e. the organization receives funds regardless of whether they provide goods and services. 2002 OK AG 37.
These groups are not subject to the Public Meetings Law merely because of their receipt of funds. The question whether such groups become the “functional equivalent” of a public body, see Marks v. McKenzie High School Fact-Finding Team, 319 Or. 451 (1994) (discussing issue in context of public records), may be relevant to this determination, but there is no case law resolving this issue. See Attorney General Manual II.B.1.2.
The definition of agency is certainly broad enough to include such groups, if they perform an essential governmental function and are authorized to take “official action” or “render advice” on agency business. 65 Pa. C.S.A. § 703. Of course, if the legislation says that a particular body is an agency under the Law, then the body must comply with the Act’s requirements. See Harristown Dev. Corp. v. Commonwealth, 614 A.2d 1128 (Pa. 1992) (A private non-profit corporation that leases land, offices or accommodations to a Commonwealth agency for a rental amount in excess of $1.5 million per year was held to be an agency because the statute creating the non-profit corporation stated that it was deemed an agency under the Sunshine Act.) (interpreting 71 Pa. C.S.A. § 632(d)). Under the new Right to Know Law, performance of a governmental function has been broadened to include such non-essential functions as operation of a public baseball stadium. See, e.g., SWB Yankees LLC v. Gretchen Wintermantel, 999 A.2d 672 (Pa. Commw. Ct. 2010).
Not covered unless a library that received 25% of its operational budget in the prior budget year from public funds or is an “authority” as defined in R.I. Gen. Laws § 42-35-1(2). R.I. Gen. Laws § 42-46-2(3). R.I. Gen. Laws § 42-35-1(2) identifies authorities as including certain named authorities, corporations and boards as well as any future “body corporate and politic with the power to issue bonds and notes, which are direct, guaranteed, contingent, or moral obligations of the state”.
Except with respect to libraries, the definition of “public body” is not tied to receipt of public funds. See Op. Att’y Gen. No. ADV OM 99-10 (July 2, 1999), 1999 WL 34814173.
The board of directors of any non-profit corporation that contracts with a state agency to receive community grant funds that comprise at least 30 percent of the corporation's annual income are "governing bodies" under the Act. However, such board of directors meetings are exempt from the Act if called "solely to discuss matters involving confidential doctor-patient relationships, personnel matters or matters required to be kept confidential by federal or state [laws or regulations]." T.C.A. § 8-44-102(B).
Although nongovernmental bodies receiving public funds or spending public funds are subject to the Texas Public Information Act, they are not subject to the Texas Open Meetings Act merely because they receive public funds. For example, the Attorney General held that a private athletic conference with some public members was subject to the Public Information Act but not the Open Meetings Act. Op. Tex. Att’y Gen. No. JM-116 (1983) (construing prior statutory provisions). In Op. Tex. Att’y Gen. No. DM-7 (1991), the Attorney General advised that a nonprofit corporation that provides services to senior citizens, is financed by private donations and state and federal loans and grants, and that is governed by a board of directors that is not selected by city or county officials, is not a governmental body subject to the Open Meetings Act. In Op. Tex. Att’y Gen. No. LO 98-040 (1998), the Attorney General advised that a nonprofit water supply corporation organized under the terms of Vernon Texas Civil Statute article 1434a is not subject to the Act. See also Op. Tex. Att’y Gen. No. JC-0407 (2001) (stating that nonprofit corporations established pursuant to the Texas Non-Profit Corporation Act, that assist local entities pursuant to contract, and that are not delegated governmental authority, are not subject to the Open Meetings Act).
Although it receives less than 25 percent of its total budget from the State, the University of Vermont is still a public body because, inter alia, it is chartered by the State, the Governor is an ex officio trustee, and the legislature appoints additional trustees. See Sprague v. Univ. of Vt., 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v Univ. of Vt., 159 Vt. 133, 137-38, 616 A.2d 224 (Vt. 1992). The Vermont Supreme Court has reiterated this holding, noting that the legislature had sufficient authority over UVM to render it a public body subject to Vermont’s Open Meeting Law and Public Records Act. State v. Curley-Egan, 2006 VT 95, ¶ 15, 180 Vt. 305, 311-312 (Vt. 2006).
With the exception of the rulings that the University of Vermont is covered by the law, the Vermont courts have not addressed whether nongovernmental bodies receiving public funds or benefits are subject to the Open Meeting Law.
Receipt of public funds is likely insufficient to subject an otherwise private nongovernmental entity to the requirements of the OPMA. However, private entities have been held to be “agencies” subject to the OPMA and Public Records Act, if they are the “functional equivalent” of a public agency under a four-part test that looks to (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government. See Fortgang v. Woodland Park Zoo, 187 Wn.2d 509, 387 P.3d 690 (2017); Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185, 181 P.3d 881 (2008); Telford v. Thurston County Bd. of Com’rs, 95 Wn. App. 149, 974 P.2d 886 (1999).
As noted in the previous sections, the Open Meetings Act's coverage depends upon whether a "governing body" of a "public agency" is involved. Public agencies include "[A]ny administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power." W. Va. Code § 6-9A-2(7).
Nongovernmental bodies with no connection or agency relationship with government, by definition, are not public agencies and therefore not subject to the Act. However, it could be argued that public funding creates an agency relationship between the nongovernmental body and government sufficient to make it subject to the statute, particularly if the organization is performing a public function. Any conclusion concerning whether a nongovernmental body which receives public funds is subject to the Open Meetings Act would have to be based upon the facts of the particular case.
It should be noted that even though a particular agency or committee may not fall within the definition of public agency, the Legislature, through additional legislation, could mandate that a nonpublic body be required to abide by the Act. For example, the Legislature has required that “all meetings of a governing body of a hospital shall be open to the public.” W. Va. Code § 16-5G-3 (1982). This openness requirement is based primarily on the fact these hospitals receive either public funds or special benefits under state tax laws, and that there is an obvious and significant public interest in their operations.
The definition of "agency" is limited to organizations "created by or pursuant to the Wyoming constitution, statute or ordinance," so nongovernmental agencies would not be included. Id.; Wyo. Att'y Gen. Op. 73-17 (1973). However, no cases has been presented to the Wyoming Supreme Court in which a private entity is the "alter ego" of a governmental entity.