4. Nongovernmental bodies
Records that are "developed or received . . . by a public contractor for a public agency" are "public records" available for inspection and copying. AS 40.25.220(6). Even before 1990 amendments to the public records act, some local governments had specifically provided for access by ordinance to records of private parties dealing with public business. See, e.g., Anchorage Municipal Code (AMC) 3.90.020 (right of access extends to public records defined to include "any document, whether in draft or final form, containing information relating to the conduct of the people's business which is prepared, owned, used or retained by a municipal agency or an agency under contract with the municipality, regardless of the physical form or characteristic of the document." AMC 3.90.020(C). "Municipal agency" is defined to include any private contractor that has custody of public records. AMC 3.90.020(B)). Now, all local governments and their contractors are subject to the same requirements, since the public records law applies to local as well as state government. The public records act does not address whether records of nongovernmental bodies that are not public contractors, but that receive public funds or benefits, are subject to the act. Most likely they are not, as a general rule, and certainly not with respect to matters not involving use of public funds. Similarly, while the PRA does not expressly address this, it seems unlikely that the records of a body that happens to include some members who are government officials would, by virtue of that fact, be covered by the public records act. However, it would seem that records in the possession or control of the government members of the groups, participating as such rather in than in some private capacity, should be subject to the Act. The Alaska courts have not decided the question. However, the court has pointed out that the legislature chose to cover "every public writing or record in the state" instead of covering only records "of the state." See City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d at 1322.
Records of “any . . . agency wholly or partially supported by public funds or expending public funds” are subject to the FOIA. Ark. Code Ann. § 25-19-103(5)(A). Thus, the act applies to nongovernmental entities that receive public funds. E.g., Arkansas Gazette Co. v. Southern State College, 273 Ark. 248, 620 S.W.2d 258 (1981), app. dism’d, 455 U.S. 931 (1982) (athletic conference); Rehab Hospital Services Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985) (nonprofit corporation that received federal funds); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990) (law firms hired by city); Kristen Investment Properties v. Faulkner County Waterworks & Sewer Public Facilities Board, 72 Ark. App. 37, 32 S.W.3d 60 (2000) (volunteer fire department); Ark. Op. Att’y Gen. Nos. 2000-260 (county economic development corporation), 95-273 (area agency on aging, a nonprofit corporation funded by the state and the federal government), 94-001 (nonprofit rural water association that had received government grant), 92-205 (same), 87-448 (industrial development corporation funded by local governments).
Even when a private entity’s records might be subject to disclosure under the FOIA, that private entity alone cannot be sued under the Act. Nabholz Construction Corp. v. Contractors for Public Protection Ass’n, 371 Ark. 411, 266 S.W.3d 689 (2007). Instead, the request must be directed to the public agency or entity covered by the Act. Id. However, a “simple ‘hand-off’ of documents” to private entities will not allow public agencies and entities to circumvent the FOIA by claiming the documents are not in their control. Id. at 419, 266 S.W.3d at 694.
(1) However, 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, supra; Ark. Op. Att’y Gen. Nos. 2001-352, 2001-324, 2001-069, 2000-039, 99-090, 98-139, 97-148, 96-123, 96-116, 96-013, 94-023, 92-205. Compare Kristen Investment Properties v. Faulkner County Waterworks & Sewer Public Facilities Board, supra (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 Arkansas 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”). For example, a private attorney’s memo advising the city about upcoming litigation is a public record. City of Fayetteville v. Edmark, supra. However, private attorneys’ memoranda advising doctors at a public hospital are not public records when the attorney was paid by a private insurance company, and the doctors were being sued for medical malpractice. Harril & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012).
(2) 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, supra (law firm); Kristen Investment Properties v. Faulkner County Waterworks & Sewer Public Facilities Board, supra (volunteer fire department). See, e.g., Ark. Op. Att’y Gen. Nos. 2008-154 (school bus contractor), 2005-067 (volunteer fire department), 2004-223 (nonprofit corporation that operates county hospital), 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), 96-372 (volunteer fire department), 97-141 (attorney who contracted with county to collect court-imposed fines), 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). Compare 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).
(3) The FOIA will generally be inapplicable to a private entity that sells supplies, equipment, and other products to a government agency. For example, the records in possession of a bank concerning credit cards issued to state employees for travel expenses probably would not be subject to disclosure under the FOIA. Ark. Op. Att’y Gen. No. 2003-064. 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.
(4) 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 County Chapter of American 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. A private entity receiving federal funds (as opposed to state funds) is subject to the Arkansas FOIA. Rehab Hospital Services Corp. v. Delta-Hills Health Sys. Agency Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). See also Ark. Op. Att’y Gen. No. 2007-192.
(5) A private organization that receives partial financial support from government is partially bound by FOIA requirements. Thus, the act applies only to records relevant to the task for which a private contractor is hired or a nonprofit corporation receives a government grant. City of Fayetteville v. Edmark, supra; Ark. Op. Att’y Gen. Nos. 2007-192, 2001-364, 96-290, 96-267, 96-185, 95-121.
(6) Records created or received by a private organization that no longer receives public funds after termination of such support are not subject to the FOIA, while records created or received during the funding period remain open to the public on a continuing basis. Ark. Op. Att’y Gen. Nos. 2007-210, 99-090, 99-157, 94-023, 92-220, 88-004.
Shortly after the FOIA’s passage, the Attorney General suggested that the act applies to a private entity whose board of directors includes government officials. Ark. Op. Att’y Gen. (April 16, 1971). That position is no longer tenable in light of the Supreme Court’s holding that only the direct receipt of public funds by a private organization triggers the act. Sebastian County Chapter of American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).
The CPRA applies to the local and state agencies listed in Sections 6252(a) and (f) of the Government Code and to private corporations and entities and lessees of any hospital pursuant to subdivisions (c) and (d), respectively, of Section 54952 of the Government Code (known as the Ralph M. Brown Act). Cal. Gov't Code § 6252(a). Specifically, private corporations or entities are subject to the CPRA if they are either created by an elected legislative body to exercise authority that may lawfully be delegated by the elected governing body or receive funds from a local agency and have as a board member at least one member of the legislative body of the local agency appointed to the governing body of the private entity, by the legislative body of the local agency, as a full voting member. Cal. Gov't Code § 54952(c)(1). See Cal. State Univ. v. Superior Court, 90 Cal. App. 4th 810, 826-30, 108 Cal. Rptr. 2d 870 (2001) (nonprofit auxiliary corporation affiliated with state university, and which operated multi-purpose arena being built on university campus, was not a state agency under CPRA); 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); see also Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 869-73, 104 Cal. Rptr. 2d 857 (2001).
In Bd. of Trustees v. FOIC, 181 Conn. 544, 436 A.2d 266 (1980), the Supreme Court established the following four-part functional equivalent test to determine whether hybrid public/private entities are subject to FOIA: (1) whether the entity performs a governmental function; (2) the level of governmental funding; (3) the extent of governmental involvement or regulation; and (4) whether the entity was created by the government. The Supreme Court held in Bd. of Trustees that the plaintiff was a public agency since it met each part of this test.
See also Conn. Humane Soc'y v. FOIC, 218 Conn. 757, 591 A.2d 395 (1991) (plaintiff is not a public agency; case also held all four factors need not be present to constitute entity a "public agency," contrary to theory of Hallas); Domestic Violence Servs. v. FOIC, 47 Conn. App. 466, 704 A.2d 827 (1998) (plaintiff is not a public agency); Hallas v. FOIC, 18 Conn. App. 291, 557 A.2d 568 (1989) (private law firm acting as town's bond counsel is not a public agency); Londregan v. FOIC, Nos. 526105, 529345, 1994 WL 385951 (Conn. Super. July 13, 1994) (distinguishing Hallas and holding that plaintiff, who maintained a private law practice but also served as city's Director of Law, a position created under the city charter and designated as a department head, was a "public agency" and therefore court required to maintain all city files at the town clerk's office or some other public place rather than in his law firm); Baron v. FOIC, No. CV 97-0342975S, 1999 WL 1001119 (Conn. Super. Oct. 26, 1999) (Superior Court reversed the FOIC, holding that Conn. Gen. Stat. §1-210(a) does not require the director of finance for the city of Bridgeport to keep and maintain records concerning law firm payments and payments for medical and legal services when these records are kept by a third-party private contractor); David v. FOIC, No. CV 97-0395384, 1998 WL 83685 (Conn. Super. Feb. 19, 1998) (New Haven Community Television Inc. is not a public agency); Marci v. New Haven Private Industry Council, Do. #FIC 84-183 (Mar. 13, 1985) (respondent is a public agency); Razzler v. Governor's Blue Ribbon Comm'n on Higher Educ., Do. #FIC 82-4 (July 7, 1983) (respondent is a public agency); Polman v. UConn School of Law, Do. #FIC 83-68 (Oct. 26, 1983) (respondent is a public agency); Yantic Volunteer Fire Dep't v. FOIC, 42 Conn. App. 519, 679 A.2d 989 (1996) (plaintiffs are the functional equivalent of a public agency); Meri Weather Inc. v. FOIC, No. CV 99-0494415S, 2000 WL 351351 (Conn. Super. Mar. 27, 2000) (plaintiff organization was virtually an alter ego of the Meriden community action agency, a public agency, and therefore was itself a public agency; key is "whether the government is really involved in the core of the program"); Fromer v. FOIC, 90 Conn. App. 101, 875 A.2d 590 (2005) (instructors at a public university are not public agencies because they have no power to govern, regulate, or make decisions affecting government; rather, they provide instruction per their contractual obligations).
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). See also Winton Park Association v. FOIC, 2009 Conn. Super. LEXIS 2603 (2010), where the court agreed that the four-point test under Board of Trustees was not appropriate where the plaintiff was a "political subdivision" created by the General Assembly. See also Perez v. FOIC, 2009 Conn. Super. LEXIS 1511 (2009) (functional equivalence test does not apply to a committee "created by" the public agency since the committee is a public agency under Conn. Gen. Stat. §1-200(1)(A)).
See, also, Conn. Gen. Stat. §1-202 ("The FOIC, on petition by a public agency contemplating creation of a committee composed entirely of individuals who are not members of the agency, may exempt the committee from compliance with FOIA.").
The Act covers bodies "established . . . appointed . . . or otherwise empowered by any state governmental entity" which: (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. 29 Del. C. § 10002(c). The University of Delaware and Delaware State University are not included, except that their respective Boards of Trustees are considered to be "public bodies." 29 Del. C. § 10002(d). University documents relating to the expenditures of public funds are "public records," and each meeting of the full Board of Trustees of the University of Delaware and Delaware State University are a "meeting." Id.
Nongovernmental groups whose members include governmental officials are not covered by the Act simply because governmental officials are members. Nongovernmental groups may qualify if they fall within the definition of public body.
District of Columbia
There appears to be no case law or statutory provision directly addressing this issue; a court may examine whether the documents at issue are "controlled" by a governmental body, and whether the body could reasonably expect to come within the D.C. FOIA's ambit. See Belth v. Dep't of Consumer & Regulatory Affairs, 115 Daily Washington Legal Rptr. 2281 (D.C. Super. Ct. 1987). The statutory definition of "public body" limits its inclusion to the Mayor, agencies and the D.C. Council.
Records of private persons or entities performing a service or function for or on behalf of a state or local public agency are subject to the Act. O.C.G.A. § 50-18-70(b)(2). See, e.g., Smith v. Northside Hospital, 807 S.E.2d 909 (Ga. 2017) (records of privately-restructured public hospital authority health systems are subject to the Act); Central Atlanta Progress v. Baker, 278 Ga. App. 733, 737-40, 629 S.E.2d 840, 843-45 (2006) (publicly-supported and publicly-received private bids for NFL Super Bowl and NASCAR Hall of Fame are public records); Northwest Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 340, 461 S.E.2d 297 (1995) (nonprofit hospitals operating as vehicles for public hospital authorities are subject to the Act regardless of the amount of funding they receive from the public); Hackworth v. Board of Ed., 214 Ga. App. 17, 447 S.E.2d 78 (1994) (requiring private company that transported students under a contract with the city school system to reveal personnel records of school bus drivers); Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 430 S.E.2d 89 (1993) (records of private corporations associated with hospital authority are public records); Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993) (records of the University of Georgia Student Organization Court subject to the Act); Cremins v. Atlanta Journal and Constitution, 261 Ga. 496, 405 S.E.2d 675 (1991) (records reflecting the athletically related "outside" income of public university athletic coaches are public records even if the records are not on file with and have never been reviewed by university officials); Dooley v. Davidson, 260 Ga. 577, 397 S.E.2d 922 (1990) (same); Macon Tele. Publishing Co. v. Board of Regents, 256 Ga. 443 (1986) (records showing the assets, liabilities, income and expenses of the private University of Georgia Athletic Association are public records).
The UIPA defines "agency" to include any unit of government which is owned, operated, or managed by or on behalf of the State or any county. This may conceivably include nongovernmental bodies receiving public funds or benefits, although a case-by-case examination is necessary to determine whether such an organization is, for purposes of the law, a government agency. See East-West Center, OIP Op. Ltr. No. 92-2 (Mar. 4, 1992) (discussing autonomy of East-West Center from University of Hawaii operations and federal funding as factors whose consideration in a determination of whether Center was a state agency was obviated by a statutory measure exempting the Center from classification as a state "agency"); Hawaii Humane Society as Agency; Animal Control Enforcement Records, OIP Op. Ltr. No. 09-01 (Aug. 7, 2009) (Hawaii Humane Society is “agency” for the limited purpose of compliance with the UIPA when it provides services directly related to its enforcement of state and county laws concerning animal control).
The UIPA is unclear about the status of nongovernmental organizations whose members include governmental officials. Again, case-by-case examination of the circumstances may determine the extent of state control and/or the extent to which such organizations perform government functions, and, hence, whether such entities qualify as government agencies.
The Idaho Supreme Court has upheld public records requests under the Act when the record in question was not in the custody of a public entity. Idaho Conservation League, Inc. v. Idaho State Dept. of Agric., 143 Idaho 366, 146 P.3d 632, (2006); Ward v. Portneuf Medical Center, Inc., 150 Idaho 501, 248 P.3d 1236 (2011). In Idaho Conservation League, the Department of Agriculture argued that it was not required to provide the records at issue because the requested documents were returned to feedlot operators after being created. 143 Idaho at 368. Rather than focusing on the definition of public record – which includes any writings prepared or used by a state agency – the court relied on the fact that “[a] state agency is expressly prohibited from preventing examination of a public record ‘by contracting with a nongovernmental body to perform any of its duties or functions.’ ” Id. at 369 (citing Idaho Code § 9–338(9) [now Idaho Code § 74–102(13)]). In Ward, the Idaho Supreme Court held that an agency’s sale of a medical center to a private entity did not affect the obligation to provide public records that were subject to disclosure under the Act at the time of the plaintiff’s request. 150 Idaho at 505-07. The court concluded “so long as a document qualifies as a public record at the time of a request and is not subject to any exemptions, its subsequent transfer to a nongovernmental entity does not affect its status as a public record.” Id. at 507.
In addition, to the extent that any nongovernmental bodies meet the broad definition of either a "state agency" or “local agency,” their records would be considered “public records” under the act.
The Act does not specify any covered non-governmental bodies, although it does cover subsidiary bodies, which include committees and subcommittees of a public body. 5 ILCS 140/2(a). “Subsidiary body” is not defined by the Act, but a court interpreting the meaning of that term under the FOIA would look to case law construing the Illinois Open Meetings Act definition of public bodies, which is almost identical to the definition contained in the Freedom of Information Act. For example, in Rockford Newspapers Inc. v. Northern Illinois Council on Alcoholism and Drug Dependency, 64 Ill. App. 3d 94, 380 N.E.2d 1192, 21 Ill. Dec. 16 (2d Dist. 1978), the court found that a private, not-for-profit organization formed to administer drug and alcohol treatment programs (“NICADD”) was not subject to the provisions of the Open Meetings Act, despite the fact that 90 percent of its funding came from governmental grants and contracts, and despite the fact that its programs were monitored and regulated by federal, state and local governments.
The court stated that emphasis on the extent of governmental funding was misplaced. Instead, the court held, that the following factors were relevant in determining that NICADD was not a subsidiary body subject to the Open Meetings Act: (1) the formal legal nature of NICADD (not-for-profit corporation); (2) the independence of its board of directors; (3) the independence of employees from direct government control; and to a lesser extent (4) the degree of governmental control over NICADD; and (5) the nature of NICADD’s function’s. Rockford Newspapers, 64 Ill. App. 3d at 96-97, 380 N.E.2d at 1193-94, 21 Ill. Dec. at 17-18.
Hopf v. Topcorp, 170 Ill. App. 3d 85, 527 N.E. 2d 1, 122 Ill. Dec. 629 (1st Dist. 1988), applied the Rockford Newspapers analysis to a FOIA claim. An economic development corporation, owned by a city and a private university, was found to not be a public body within the meaning of the Act.
However, in certain contexts, records relating to non-governmental entities may be available from the governmental entities that fund them. For example, the Illinois Appellate Court has ruled that private landlords receiving federal funds for housing through a local housing authority have no protectable right of privacy that prevents disclosing a list of those landlords who receive such funds, the amount of payments received and the addresses of properties subsidized under the program. Mid-America Television Co. v. Peoria Hous. Auth., 93 Ill. App.3d 314, 417 N.E.2d 210, 48 Ill. Dec. 808 (3d Dist. 1981).
And in Family Life League v. Dep't of Public Aid, 112 Ill. 2d 449, 493 N.E.2d 1054, 98 Ill. Dec. 33 (1986), the Illinois Supreme Court ruled that the Illinois Department of Public Aid was required to disclose the names of doctors who provide abortion services, the number of abortions performed and the amounts paid for the services. In making its ruling, the court noted that receipt of state funds by physicians creates a public interest in the physicians' activities regarding the use of the funds that outweighs the physicians' limited privacy interest in the information. See Family Life League, 112 Ill. 2d at 457, 493 N.E.2d at 1058, 98 Ill. Dec. at 37. The same principles extend to other factual situations.
In Public Access Opinion 11-004 (available at http://foia.ilattorneygeneral.net/pdf/opinions/2011/11-004.pdf), the PAC concluded that settlement agreements entered into by an intergovernmental risk management association or self-insurance pool on behalf of a public body are subject to disclosure; 5 ILCS 140/7(1)(s) does not exempt the amount of money expended to settle a claim.
In 2010, the General Assembly expanded the scope of the Act, to include as public records of a public body the records of contractors for the public body. See ILCS 5/140/7(2). Illinois courts have weighed in on this subsection, further defining when contractor’s records are covered by the Act. Chicago Tribune v. Coll. of Du Page, 2017 IL App (2d) 160274, 79 N.E.3d 694 (holding that records of a college foundation are subject to disclosure; but see Better Gov't Ass'n v. Illinois High Sch. Ass'n, 2016 IL App (1st) 151356, 56 N.E.3d 497, appeal allowed, 60 N.E.3d 871 (Ill. 2016), and aff'd, 2017 IL 121124 (the records of a statewide athletic association are not subject to disclosure.
The Act probably does not cover non-governmental bodies unless the governmental officials are serving on the body in some type of official capacity and their presence on the body has an impact on public policy or expenditure of public money. Also, courts may examine to what extent, if at all, a governmental body is exercising control over the relevant entity pursuant to the test enunciated in Rockford Newspapers Inc., supra.
Lathrop v. Juneau & Associates, Inc., 220 F.R.D. 322 (S.D.Ill. 2004) held that a requester stated claim under the FOIA against members of private engineering firm, based on allegations that the firm held a municipal position of city engineer.
The definition of “public agency” includes certain nongovernmental bodies. For example, under Indiana Code Section 5-14-3-2(q), “a private university police department” is a “public agency” for the purposes of the Access to Public Records Act. However, the private university police department must exercise the power of the state to be a “public agency.” See ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1198–99 (Ind. 2016) (holding that Notre Dame’s police department was not a “public agency” because the university’s trustees created and control the department).
The definition of “public agency” also includes any entity or office that is subject to budget review by the State Board of Tax Commissioners or the governing body of a county, city, town, township or school corporation, or subject to an audit by the State Board of Accounts. Ind. Code § 5-14-3-2(q). Under this definition, non-governmental bodies supported or maintained by public funds (as distinguished from receiving payment for measureable goods or services) are subject to the Act. Ind. Code § 5-14-3-2.
The State Board of Accounts is empowered to “examine all accounts and all financial affairs of every public . . . entity.” Ind. Code § 5-11-1-9(a). A “public entity” is any provider of goods, services, or other benefits that is: “(1) maintained in whole or in part at public expense; or (2) supported in whole or part by appropriations or public funds or by taxation.” Ind. Code § 5-11-1-16(e); Indianapolis Convention & Visitors Ass’n Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 213–14 (Ind. 1991) (not-for-profit corporation that received a percentage of county hotel/motel tax revenues to promote Indianapolis tourism is a public agency subject to the Access to Public Records Act).
In 2007, the statute was amended to clarify that providers of goods and services are not public agencies 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 the tax revenues or receipts” of the governmental 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 § 5-14-3-2.1.
"The term 'governmental body' means this state, or any county, city, township, school corporation, political subdivision, tax supported district, nonprofit corporation whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D, or other entity of this state, or any branch, department, board, bureau, commission, council, committee, official or officer of any of the foregoing or any employee delegated the responsibility for implementing the requirements of this chapter [chapter 22]." Iowa Code § 22.1(1).
Governmental bodies cannot prevent the examination or copying of public records by contracting with nongovernmental bodies to perform governmental duties or functions. Iowa Code § 22.2(2). "In other words, a governmental body may not delegate or 'contract away' its duties or functions in order to avoid disclosure of what would otherwise be a public record." KMEG Television, Inc. v. Iowa State Bd. of Regents, 440 N.W.2d 382, 385 (Iowa 1989) (network bid proposals received by communications company pursuant to company's contract with state university for broadcast of sporting events are not public records because broadcasting sporting events is not a governmental function). But see Gannon v. Bd. of Regents, 692 N.W.2d 31, 44 (Iowa 2005) (overruling KMEG in part and holding that the Iowa State University Foundation "performs a government function by virtue of its contract with ISU. Therefore, its records are "public records" subject to examination")
The records of nongovernmental groups whose members include governmental officials are public if the records are held by governmental officials in their official capacity. Dubuque v. Dubuque Racing Ass'n, Ltd., 420 N.W.2d 450, 453 (Iowa 1988) (emphasis added) (finding that minutes of a board meeting of a non-profit corporation were public records belonging to the city because two of the board members were elected city officials and one of those officials stored those minutes in the city manager’s office).
There are several ways in which a nongovernmental body may qualify as a “public agency” subject to Kentucky’s Open Records Act.
Nongovernmental organizations that receive substantial funds from the government may qualify under Ky. Rev. Stat. 61.870(1)(h), which includes in the definition of “public agency,”
Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection.
An agency that receives only a portion of its funding from state or local authority funds, pursuant to Ky. Rev. Stat. 61.870(1)(h), will solely disclose records pertaining to the "functions, activities, programs or operations funded by state or local authority." Ky. Rev. Stat. 61.870(2).
A nongovernmental entity may also qualify as a “public agency” if a majority of its governing body is appointed by a public agency or if it is created, established, and controlled by a public agency. See Ky. Rev. Stat. 61.870(1)(i) and (j).
An interagency body of two or more public agencies where each is defined as a public agency under the Open Records Act is collectively a public agency. See Ky. Rev. Stat. 61.870(k).
Nongovernmental bodies receiving public funds are subject to the statute, to the extent that the records pertain to the receipt of public funds. See La. Rev. Stat. Ann. § 17:3390 (nonprofit corporations that support public colleges and universities); Guste v. Nicholls College Foundation, 564 So. 2d 682 (La. 1990) (records of nonprofit corporation organized to support public university are public to the extent records relate to receipt and expenditure of mandatory student dues paid initially by university to alumni association, but nevertheless constituting public funds); Lewis v. Spurney, 456 So. 2d 206 (La. App. 4th Cir. 1984), writ denied, 457 So. 2d 1183 (La. 1984), writ denied, 458 So. 2d 488 (La. 1984) (financial records of the Louisiana World Exposition, a private nonprofit corporation which created and operated the 1984 World's Fair, are public records insofar as those records date from the time LWE received state funds); Carter v. Fench, 322 So. 2d 305 (La. App. 1st Cir. 1975), writ denied, 325 So. 2d 277 (La. 1976) (records of public university student government association budget are public records; once tuition fees are collected by the university these fees become public funds, and those agencies which are the ultimate recipients of such funds are subject to the Public Records Act insofar as their financial records are concerned); but see Op. Att'y Gen. 93-214 (other records of student government association generally not subject to Public Records Act); and Dorson v. State of Louisiana, 657 So. 2d 755 (La. App. 4th Cir.), writ denied, 662 So. 2d 472 (La. 1995) (federally funded and authorized committees within state university system not subject to Public Records Act).
A group whose members include governmental officials is covered if it receives public funds as its primary source of income, performs a public service, and renders a public function. Op. Att'y Gen. 78-282 (associations of public officials such as the Louisiana School Board Association, the Louisiana Municipal Association, and the Louisiana Police Jury Association are covered by Public Records Act). See also Op. Att'y Gen. 93-53 (Personnel board composed of Mayor and Selectmen of parish is subject to Public Records Act). But see La. Rev. Stat. Ann. § 17:3390, which, as to public college and university support foundations, would appear to limit disclosure to records of receipt and expenditure of public funds regardless of extent of public funding or public functions performed. The statute provides for the same limited records disclosure even if public university board members and employees serve on the foundation board, as long as they do not constitute a majority of the voting members. Id.
Nongovernmental bodies that perform governmental functions are subject to the Public Records Act. New Orleans Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals, 222 So.3d 679 (La. 2017) (SPCA, that provides animal control services under contract with city, subject to Public Records 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:
- Whether the entity is performing a governmental function;
- Whether the funding of the entity is governmental;
- The extent of governmental involvement or control; and
- 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.
The PIA generally applies. For bodies receiving public funds or benefits, the PIA only applies if the body receives sufficient public funds to be deemed an "agent" of the State. See, e.g. Moberly v. Herboldsheimer, 276 Md. 211, 345 A.2d 855 (1975). In addition, a non-governmental body created by statute, but that receives no public funds, may be subject to the PIA if: (1) the body serves a public purpose, (2) the government exercises a certain degree of control over it; and (3) it is immune from tort liability. A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 464 A.2d 1068 (1983) (holding that the Maryland Insurance Guaranty Association, a public entity created by statute but receiving no public funds, is subject to the PIA).
The definition of "public body" includes "[a]ny other body which is created by state or local authority or which is primarily funded by or through state or local authority." Mich. Comp. Laws Ann. § 15.232(d)(iv); see Detroit News v. Policemen and Firemen Retirement System, 252 Mich. App. 59, 651 N.W.2d 127 (2002) (municipally chartered retirement system a public body subject to FOIA). One example of a body which has been held to be included in this definition is the President's Council of State Colleges and Universities, which is wholly funded by state universities and colleges. 1979-80 Op. Att'y Gen. 255, 262 (1979); but see Kubick v. Child and Family Services of Michigan Inc., 171 Mich. App. 304, 429 N.W. 2d 881 (1988) (government funding that amounts to less than half the total funding of a corporation does not amount to primary funding and such entity is not a public body for FOIA purposes). Also included is a state-funded university, such as the University of Michigan. Booth Newspapers Inc. v. University of Michigan Board of Regents, supra, 507 N.W.2d at 431. But see Mich. Comp. Laws Ann. § 15.243(x) (exemption for documents concerning certain universities' presidential searches).
A public body under the FOIA also includes any body that is "primarily funded" by or through state or local authority. Jackson v. Eastern Michigan University Foundation, 215 Mich. App. 240, 544 N.W. 2d 737 (1996). This is true regardless of whether the funding comes from one source or several. Scalfani v. Domestic Violence Escape, 255 Mich. App. 683, 660 N.W.2d 97 (2003) (legislative use of the word "authority" in the statute embraces the plural form as well). The term "funded" has been held not to include public monies paid in exchange for goods provided or services rendered. Breighner v. Michigan High School Athletic Ass'n, 471 Mich. 217, 683 N.W.2d 639 (2004) (private, nonprofit association of state high schools financed in part by public monies in exchange for scheduling and event hosting services not a public body subject to FOIA); see also State Defender Union Employees v. Legal Aid and Defender Ass'n of Detroit, 230 Mich. App. 426, 584 N.W. 2d 359 (1998) (private, nonprofit corporation established to provide legal services to indigent persons not a public body subject to FOIA); Howell Education Association v. Howell Board of Education, 287 Mich. App. 228, 789 N.W. 2d 495 (2010) (teachers’ emails regarding their union activities had nothing to do with their official governmental capacity and therefore were not covered by FOIA).
The Public Records Act is silent as to whether these groups' records are open. See Mont. Code Ann. § 2-6-1002(10). However, the state constitution guarantees public access to the records of "public bodies" defined under the open meetings law as bodies "or organizations or agencies supported in whole or in part by public funds," Mont. Code Ann. § 2-3-203(1), and the Supreme Court used definitions found in the Montana Procurement Act to conclude that an advisory committee of the Department of Corrections was subject to the constitutional right to know in Great Falls Tribune Co. Inc. v. Day, 289 Mont 155, 959 P.2d 508 (1998). Thus, a requesting party should argue that these entities are covered by the Public Records Act, particularly if they receive public funds. See also Bryan v. Yellowstone Co. Elem. Sch. Dist. No. 2, 312 Mont. 257, 60 P.3d 381 (2002) (Montana Supreme Court held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the right to know provision of the Montana Constitution and held the documents submitted by the committee were public documents subject to disclosure).
Records of "tax-supported districts" that are not counties, cities, villages or political subdivisions are public records. Neb. Rev. Stat. §84-712.01(1). To the extent a group or body contains a quorum of a public body and the group reviews documents, those documents are probably public records pursuant to Neb. Rev. Stat. §84-1412(8).
The Supreme Court of Nevada has not explicitly ruled as to whether the NPRA applies to the judicial branch. “As a separate branch of government under the Nevada Constitution, the judiciary has the inherent authority to manage its own affairs, make rules, and carry out other incidental powers when ‘reasonable and necessary’ for the administration of justice.” Civil Rights for Seniors v. AOC, 129 Nev. 752, 313 P.3d 216, 220 (2013) (internal citations omitted). “In exercising this power, we have adopted rules declaring that “[a]ll court records in civil actions are available to the public, except as otherwise provided in these rules or by statute.” SRCR 1(3). “Court records” are then defined to include “information ... that is maintained by a court in connection with a judicial proceeding.” SRCR 2(2)(a). This “does not include data maintained by or for a judge pertaining to a particular case or party, such as ... working papers; or information gathered, maintained, or stored by a government agency or other entity to which the court has access but which is not entered in connection with a judicial proceeding.” SRCR 2(2)(b).
In Professional Firefighters of New Hampshire v. HealthTrust, Inc., 151 N.H. 501 (2004), the Court held that a quasi-public non-profit New Hampshire corporation formed by an association of 322 governmental entities to provide general health insurance benefits for public employees under a pooled risk management program was covered by the Statute. Accord, Professsional Firefighters of New Hampshire v. Local Government Center, Inc., 159 N.H. 699, 703 (2010); see, Union Leader Corp. v. N.H. Housing Fin. Author., 142 N.H. 540 (1997), holding that the Statute applied to the New Hampshire Housing Finance Authority, a distinct legal entity separate from the State.
OPRA applies to records of any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof. (See N.J.S.A. 47:1A-1.1). Consequently, records of non-governmental bodies are generally not subject to the law. However, there may be circumstances under which a governmental entity is not excused from its OPRA obligations simply because the requested records are not in its possession. See Burnett v. County of Gloucester, 415 N.J. Super 506 (2010) (finding that “the settlement agreements at issue here [and in the possession of the County's insurance broker, one of the County's insurers, or outside counsel, but not in the possession of the County] were ‘made’ by or on behalf of the Board in the course of its official business. Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA. N.J.S.A. 47:1A-1.1.”)
The definition of “public body” contained in the Inspection of Public Records Act provides that all advisory boards, commissions, committees, agencies, or entities created by the Constitution or any branch of government that receives any public funding are subject to the Act. NMSA 1978 § 14-2-6(F) (2013). Additionally, the New Mexico Court of Appeals has adopted a totality of factors test for determining whether a private entity is subject to the Inspection of Public Records Act. State ex rel Toomey v. City of Truth or Consequences, 2012-NMCA-104, ¶ 22, 287 P.3d 364. Though no single factor is determinative, the factors include “the level of public funding,” the “commingling of funds,” and “for whose benefit the private entity is functioning.” Id. ¶¶ 13, 22.
- Bodies receiving public funds or benefits.
The North Carolina Public Records Law covers records relating to “the transaction of public business by any agency of North Carolina government or its subdivisions.” Although “agency” is broadly defined, the law does not automatically reach nongovernmental bodies merely because they receive public funds or benefits. In 2007, the legislature reorganized and recodified the laws related to non-state entities receiving state funds. Such organizations are subject to review by the State auditor. G.S. § 143C-6-23.
If a city or county grants $1,000 or more in any fiscal year to a non-profit corporation or organization, the city or county may require that the nonprofit have an audit performed for the fiscal year in which the funds are received and may require that the nonprofit corporation or organization file a copy of the audit report with the city or county. Any nonprofit corporation or organization that receives $1,000 or more in state funds shall, at the request of the State auditor, submit to an audit by the office of the State auditor for the fiscal year in which such funds were received. Every nonprofit corporation or organization which has an audit performed pursuant to this section must file a copy of the audit report with the office of the State auditor. G.S. § 159-40.
2. Bodies whose members include governmental officials.
Because the North Carolina Public records law covers only records made or received “in connection with the transaction of public business,” it does not cover records of “nongovernmental groups” generally.
Because the open records law covers “organizations or agencies supported in whole or in part by public funds, or expending public funds,” the records of such organizations are subject to the act. “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(14). 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. N.D.C.C. § 44-04-17.1(10). 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 manages a pool of public funds on behalf of one or more public entities, or when it receives and uses a direct appropriation from a governmental entity. See N.D. Op. Att’y Gen. 99-O-02 (1999); N.D. Op. Att’y Gen. 96-18 (1996).
The North Dakota attorney general has also opined that nonprofit corporations receiving public funds are public entities subject to the state’s open records and open meetings laws, and that a development company funded by a public sales tax is subject to the open records laws. N.D. Op. Att’y Gen. 2006-O-04 (2006); N.D. Op. Att’y Gen. 2005-O-06 (2005). In Forum Publishing Company v. City of Fargo, the North Dakota Supreme Court held that a private personnel firm hired to select a new police chief for the city of Fargo was subject to the open records law. 391 N.W.2d 169, 172 (N.D. 1986). The court held it “did not believe the open-record law can be circumvented by the delegation of a public duty to a third party, and these documents are not any less a public record simply because they were in the possession of [the private personnel firm].” Id.
If a body is not a public or governmental body, but its members include governmental officials, the open records law applies only if the body is supported in whole or in part by public funds or if the body expends public funds. For example, in Adams County Record v. Greater North Dakota Association, ten state government agencies purchased thirty memberships from the Greater North Dakota Association, a nonprofit corporation engaged in lobbying efforts. 529 N.W.2d 830, 832 (N.D. 1995). The North Dakota Supreme Court held there were disputed issues of fact for the district court to decide as to whether the corporation was supported by public funds. Id. at 838. The Supreme Court found that the Greater North Dakota Association may be subject to open records laws, because the government agencies paid membership dues and because the association received public funds in the form of a grant to aid in publishing a magazine. Id. at 836-38.
A "public office" is the entity that has "public records." Neither the Public Records Act nor its related statutes explicitly address private entities to whom a public office has delegated the performance of public services or that function as a de facto public office.
Ohio Rev. Code § 149.011(A) defines “public office” as “organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.” R.C. 149.011(A).
Before 2001, the Ohio Supreme Court regularly found that private entities carrying out public services on the government's behalf had to allow public inspection of records that documented carrying out those services.
In the first of those cases, the court decided that a private nonprofit corporation whose only function was to operate a city-owned hospital under a rent-free lease with the city, and whose records were subject to the city's control, had to allow a newspaper to inspect the minutes of the meetings of the corporation's board of trustees in managing the hospital.. State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 531 N.E.2d 313 (1988).
In 2001, the Ohio Supreme Court started to retreat from opening the records of privatized governmental services when it declined to apply the Fostoria Daily Review decision to a similar arrangement between a private nonprofit corporation managing a different city-owned hospital run by board of trustees whose members were appointed by local mayors. State ex rel. Stys v. Parma Cmty. Gen. Hosp., 93 Ohio St. 3d 438, 755 N.E.2d 874, 2001-Ohio-1582.
Since the Stys decision, the Ohio Supreme Court has retreated significantly from allowing the public to compel a nongovernmental body to open any of its records even though the body gained its authority from the government to make and keep the records for a public purpose.
Since 2006, the Ohio Supreme Court has applied a "functional-equivalency" test to decide whether a private entity entangled with government must comply with the statute. Under that test, the court analyzes "(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 or to avoid the requirements of the Public Records Act.” State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 854 N.E.2d 193, 2006-Ohio-4854.
The prime difficulty in overcoming the functional-equivalency test is that it requires the government to "control the day-to-day operations" of the private entity. That level of control virtually never exists when the government chooses to privatize its services. See State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St.3d 338, 859 N.E.2d 936, 2006-Ohio-6713, ¶ 34.
The Ohio Supreme Court did not reach the functional-equivalency test when it ruled that a private, nonprofit corporation operating a public city-owned market under a contract with the city could redact from public view certain terms from its leases with shop owners as trade secrets. State ex rel. Luken v. Corp. for Findlay Market, 135 Ohio St.3d 416, 988 N.E.2d 546, 2013-Ohio-1532.
“The fact that a private entity receives government funds does not convert the entity into a public office for purposes of the Public Records Act.” Oriana House, 110 Ohio St.3d 456, 854 N.E.2d 193, 2006-Ohio-4854, at ¶ 29.
The Ohio Supreme Court declined to apply the functional-equivalency test in ruling that a private college's campus police department had to release to a student newspaper records of arrests that campus officers made. The court relied on a state law that gave private colleges their only authority to hire their own "police officers" with the same powers as police officers hired by local governments. A private college's campus police are empowered to arrest people, conduct searches, seize property, and to use deadly force. R.C. 1713.50. So campus police departments of private and public colleges are established by law to exercise a fundamental and historically "function of government"—a prime criterion to be a "public office." R.C. 149.011(A); State ex rel. Schiffbauer v. Banaszak, 142 Ohio St.3d 535, 33 N.E.3d 52, 2015-Ohio-1854.
But when a county charter authorized a newly-structured county government to establish advisory groups of private citizens and public officials to recommend additional components for the new government, the Ohio Supreme Court ruled that the advisory groups were not subject to the Public Records Act. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 943 N.E.2d 553 (2011).
A relator seeking to enforce the Public Records Act must demonstrate by clear and convincing evidence that an entity is the functional equivalent of a public office. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 943 N.E.2d 553 (2011).
When the Court decided the Fostoria case, it looked to whether state or local government had authorized a private entity to perform "a public service" as "supported by public taxation." State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 11-12, 531 N.E.2d 313, 315 (1988).
Under that former test: State ex rel. Plain Dealer Publishing Co. v. City of Cleveland, 75 Ohio St. 3d 31, 661 N.E.2d 187 (1996) (resumes received by private executive search firm hired by city to find candidates for post of city police chief); State ex rel. Toledo Blade Co. v. Univ. of Toledo Foundation, 65 Ohio St. 3d 258, 602 N.E.2d 1159 (1992) (records of donors to private corporation that functioned as alter-ego of state university); State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990) (workpapers of a private accounting firm generated in auditing the finances of a municipality); State ex rel. Findlay Publishing Company v. Hancock County Board of Commissioners, 80 Ohio St. 3d 134, 684 N.E.2d 1222 (1997) (settlement agreement prepared by the attorney for the county's insurer); State ex rel. Freedom Communications Inc. v. Elida Community Fire Company, 82 Ohio St. 3d 578, 697 N.E.2d 210 (1998) (investigative report prepared by private, nonprofit corporation that contracted with townships to provide fire-fighting services). But see State ex rel. Farely v. McIntosh, 134 Ohio App. 3d 531, 731 N.E.2d 726 (Montgomery App. 1998) (records compiled by court-appointed psychologist are personal, not public, records).
Ohio Rev. Code § 149.431 requires nonprofit corporations receiving public funds to make available to the public financial statements and the contracts pursuant to which the corporations receive the public funds.
Ohio Rev. Code § 9.92 exempts from the public records statute private organizations receiving public funds and named as official county organs to reward citizens who provide tips leading to the solving of crimes (citizen reward programs).
Aside from analyzing whether providing public services under governmental authority subjected a private entity to the Public Records Act as a de facto public office, the Ohio Supreme Court has subjected private entities to the public's right to inspect and copy records to the extent that those records document performing services delegated to them by the government. That theory applies where the government monitors the private entity's performance of the delegated services and has access to the private entity's records for that purpose. State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990).
But the court rejected the Mazzaro delegation theory when it declined to require advisory groups of private citizens and public officials to open various records even though a county charter authorized the county to retain those groups to study various components of local government and to recommend components for the county to adopt. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 943 N.E.2d 553, 2011-Ohio-625 (where an entity only produces recommendations for a public office, the records used to produce those recommendations are not public records).
A requester may sue either the public office or a "person responsible for a public record." Ohio Rev. Code § 149.43(C)(1).
A "person responsible" can be a private entity performing a delegated or privatized governmental service. "[T]he disjunctive used in R.C. 149.43(C) manifests an intent to afford access to public records, even when a private entity is responsible for the records.” State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990); State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of Comm'rs, 80 Ohio St. 3d 134, 684 N.E.2d 1222 (1997) (ordering disclosure of settlement agreement when county's attorney possessed the agreement).
Any entity "supported in whole or in part by public funds" is subject to the act. 51 O.S. § 24A.3
If they have a connection with the transaction of public business, the expenditure of public funds or the administering of public property, they are covered under the act. 51 O.S. § 24A.3. A public trust is a public body and is required to comply with the Act. 2010 OK AG 1. A wholly owned intermediary of the Oklahoma Capital Investment Board, a public entity created to stimulate economic development, would be a public body under the Act because it is entrusted with the expenditure of funds. 2012 OK AG 1. However, the Oklahoma Court of Civil Appeals has held that a not-for-profit insurance provider created by the Legislature was not a public body, even though four public officials constituted its Board of Managers. CompSource Okla. v. Nat’l Am. Ins. Co., 2012 OK CIV APP 22.
That a body receives public funds or benefits does not alone mean it is subject to the Public Records Law. In Marks v. McKenzie High School Fact Finding Team, 319 Or 451, 878 P.2d 417 (1994), however, the state court created a six-part test: (1) Was the entity created by government? (2) Is the function of the entity one traditionally performed by government or privately? (3) Can the entity bind government with its decisions or does it only make recommendations? (4) What is the nature and level of governmental financial and nonfinancial support? (5) What is the scope of governmental control over the entity’s activities and operations? and (6) Are the entity’s officers or staff public employees?
In the McKenzie High case, the Court found that a school fact-finding team, asked to investigate a high school’s performance, was not a public body and therefore not subject to the Public Records Law.
The Attorney General has taken the position that even if a private entity meets the Marks test, it does not necessarily mean that all of the private entity’s records are subject to the Public Records Law. Rather, the Attorney General’s position is that it is appropriate to “examine whether the entity possesses the requested records for purposes that are governmental in nature,” providing as an example that records pertaining to a contractor’s work on a program may be public records, but not all records of the private company will be subject to the Public Records Law. See Attorney General Manual, § I.B.2.
A body supported in whole or in part by public funds or one that expends public funds is subject to the act. S.C. Code Ann. § 30-4-20(a); Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991). A business does not become subject to the act by the receipt of public funds if the public funds are given in exchange for identifiable goods or services. Id.
A nongovernmental group would not become subject to the act merely because its members include governmental officials unless the group received public funds as an appropriation and not in exchange for goods or services incident to an arms-length transaction. Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991).
Nongovernmental bodies receiving public funds or benefits are not specifically covered. Note, however, the liberal construction of open records laws when public funds are involved. Only bodies that are “of’ the state or its political subdivisions. It is uncertain whether a record might be considered public because it could be attributed to an individual government official. SDCL §1-27-1.1.
In 2008 the Act was revised to state, “A governmental entity is prohibited from avoiding its disclosure obligations by contractually delegating its responsibility to a private entity.” T.C.A. § 10-7-503(a)(6) This amendment seems to incorporate a 2002 decision of the Tennessee Supreme Court.
Even before the above stated amendment, Tennessee courts construed the Act to cover the records of nongovernmental bodies in receipt of public funds and of advisory boards of quasi-governmental bodies. In Memphis Publishing v. Cherokee Children & Family Services, 87 S.W.3d 67 (Tenn. 2002), the Tennessee Supreme Court held that a "functional equivalency test" should be used to determine if the Act would apply to a private company retained by a government agency to perform governmental services. Whether a private entity operates as the functional equivalent of a government entity, so as to render its records subject to the Act, will be judged in light of the totality of the circumstances. Factors relevant to this analysis are: 1) level of government funding, 2) extent of government involvement or control, and 3) whether the entity was created by the government. However, not all records of non-government entities who assist government operation will be public. In early 2011, the Tennessee Supreme Court ruled a nonprofit foundation that merely acted as a bookkeeper, paying a university medical school facility for services the facility rendered as a public hospital and securing reimbursement from the school for payments to the facility was not the functional equivalent of a governmental agency. Gautreaux v. Internal Medicine Education Foundation, Inc., 336 S.W.3d 526 (Tenn. 2011).
The International Association of Chiefs of Police Inc. was not deemed to be the functional equivalent of Memphis when that city contracted with that organization to assist in the hiring of the next Director of the Memphis Police Department. Memphis Police v. Memphis, 2017 Tenn. App LEXIS 507 (July 26, 2017)
A private company that managed a city sports arena under a contract with a metropolitan government acted as the functional equivalent of that governmental agency, because it assumed responsibility for the day-to-day operation of the arena. Allen v. Day, 213 S.W.3d 244 (Tenn. Ct. App. 2002).
Cases addressing this issue but decided before Cherokee Children & Family Services, and therefore before the 2008 amendment, may be of questionable validity. However, these cases include: Tenant subleases of city-owned property are open records. Creative Restaurants Inc. v. Memphis, 795 S.W.2d 672 (Tenn. Ct. App. 1990) (tenant subleases of city-owned property in the possession of private, for-profit corporations that served as the city's leasing agent were public records under the Act). But see Webber v. Bolling, C.A. No. 177 (Tenn. Ct. App. December 13, 1989) (working papers of certified public accountants retained by Anderson County to conduct an audit of a department of the county government were not subject to disclosure under the Act). The payroll records of a public hospital were held to be open under the Act. Cleveland Newspapers Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981), cert. denied, (Tenn. 1981) (holding that only the legislature can designate records confidential and that a hospital created by the state legislature and financed with public funds was an arm of the state carrying on a governmental function). However, employee personnel records of a hospital operated by a nonprofit corporation under a 50-year lease agreement with Shelby County were not subject to the Act. Memphis Publ'g Co. v. Health Care Corp., 799 S.W.2d 225 (Tenn. Ct. App. 1990) (reasoning that hospital that was not created by the general assembly and never claimed governmental immunity from tort actions was a private rather than governmental entity).
Entities that are not governmental bodies are not subject to the Act just because the entity has government officials on its board or in some other capacity. This is one factor, however, courts might consider in determining if the body is the functional equivalent of government.
A nominally private entity may be deemed a governmental body subject to the Act to the extent that it is supported in whole or in part by public funds such that it is sustained by such funds or acts as the functional equivalent of a governmental body. See Section 552.003(1)(A)(xii); see, also Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (Tex. 2015).
The following bodies were found to be “governmental body” subject to the Act:
- a community supervision and corrections department (limited to personnel files and other records reflecting the day-to-day management of such department) (Tex. Att’y Gen. ORD-646 (1996)).
- the State Employee Charitable Campaign Policy Committee, the State Employee Charitable Campaign Advisory Committee, and the Local State Employee Charitable Campaign Committees (Tex. Att’y Gen. Op. No. LO-94-064 (1994)).
- a municipal economic development foundation and a municipal chamber of commerce (to the extent it receives support from the foundation) (Tex. Att’y Gen. ORD-621(1994)).
- the sections of a museum that are supported by the city or the state (Tex. Att’y Gen. ORD-602 (1992)).
- a public nonprofit housing finance corporation created by local government, where the corporation’s funds by law are public funds and belong to the corporation’s sponsoring local government (Tex. Att’y Gen. ORD-601 (1992)).
- a nonprofit corporation established to administer federal job training partnership funds granted to the state (Tex. Att’y Gen. ORD-509 (1988)).
- a nonprofit volunteer fire department (Tex. Att’y Gen. Op. No. JM-821 (1987)).
- a county child support department (Tex. Att’y Gen. ORD-417 (1984)).
- the Texas Municipal League Workers’ Compensation Joint Insurance Fund (Tex. Att’y Gen. ORD-406 (1984)).
- a nonprofit industrial development corporation (Tex. Att’y Gen. Op. No. JM-120 (1983)).
- the Texas Guaranteed Student Loan Corporation (Tex. Att’y Gen. Op. No. MW-295 (1981); Tex. Att’y Gen. ORD-563 (1990)).
- a private, nonprofit corporation created to promote a metropolitan area’s interests (Tex. Att’y Gen. ORD-228 (1979));
- a city-county economic development corporation (Tex. Att’y Gen. ORD-201 (1978)).
- a nonprofit community action organization supported in part by county funds (Tex. Att’y Gen. ORD-195 (1978)).
- a hospital authority created by a city ordinance (Tex. Att’y Gen. Op. No. H-554 (1975)).
- the Texas Water Advisory Council (Tex. Att’y Gen. Op. No. GA-0065 (2003)).
- a pet shelter to which a county contractually delegated the administration of a pet registration program, including collection and retention of registration fees that would otherwise be payable to the county. Tex. Att’y Gen. ORD-4135 (2011).
GRAMA does not apply expressly to nongovernment bodies receiving public funds or benefits. However, certain records created and maintained by private entities that enter into contracts with government entities may be available for public inspection under GRAMA. For example, the following records normally are public: “documentation of the compensation that a governmental entity pays to a contractor or private provider,” Utah Code § 63G-2-301(2)(j); “records documenting a contractor’s or private provider’s compliance with the terms of a contract with a governmental entity,” id. § 63G-2-301(3)(b); “records documenting the services provided by a contractor or a private provider to the extent the records would be public if prepared by the governmental entity,” id. § 63G-2-301(3)(c); and “contracts entered into by a governmental entity.” Id. § 63G-2-301(3)(d).
Similarly, GRAMA does not expressly apply to nongovernment groups whose members include government officials.
Although it has not yet been addressed by the Vermont Supreme Court, Vermont trial courts have applied a “functional equivalence” test, considering whether a private entity from which records are sought is the “functional equivalent of a public agency” and whether the records sought “are within the scope of that equivalency.” See, e.g., Whitaker v. Vt. Info. Tech. Leaders, Inc., No. 781-12-15, 2016 Vt. Super. LEXIS 43, *3-4 (Wash. Super. Ct. Oct. 27, 2016); Prison Legal News v. Corr. Corp. of Am., No. 332-5-13, 2014 Vt. Super. LEXIS 36, *20-21 (Wash. Super. Ct. Jan. 10, 2014); see also Long v. City of Burlington, 2018 VT 103, ¶ 11 (Vt. 2018) (recognizing that trial courts have applied a functional equivalence test but deciding case on other grounds). The predominant factors used to evaluate functional equivalence are: “(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.” Whitaker, 2016 Vt. Super. LEXIS at *3-4 (citations omitted) (finding private nonprofit subject to Public Records Act). Applying these factors, at least one Vermont court has held that “the ‘cornerstone’ of the analysis is the first factor—whether and to what extent the entity performs a governmental or public function.” Prison Legal News, 2014 Vt. Super. LEXIS 36 at *20-21 (finding the governmental function factor elevates private contractor to the status of a public agency due to its involvement in the imprisonment of Vermonters).
The Act’s definition of “public body” includes “organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.” Va. Code Ann. § 2.2-3701. Whether an entity is supported “principally” by public funds is a question of fact. Wigand v. Wilkes, 65 Va. Cir. 437, 438 (Norfolk Cir. Ct. 2004). Non-governmental organizations, corporations and agencies that are not supported principally by public funds are not "public bodies" under the Act, and, thus are not subject to its disclosure requirements. 1995 Va. Op. Atty Gen. 4 (January 9, 1995) (The General Assembly did not intend for the Act to apply to a private corporation receiving public funds to pay for property, goods, or services it provides, when that corporation is not supported wholly or principally by public funds.). The presence of a government official on the governing body of an entity does not make the entity a public body. A non-governmental body may fall within the definition of “public body” if it is performing a delegated function of a public body. See Va. Code Ann. § 2.2-3701.
Records of the Judicial Qualification Commission are exempt. Garner v. Cherberg, 111 Wn.2d 811, 765 P.2d 1284 (1988). The Washington State Supreme Court has held that court case files are not subject to the Public Records Act. Nast v. Michaels, 107 Wn.2d 300, 730 P.2d 54 (1986). Subsequent cases have extended this rule to all records held by the judicial branch, including administrative documents and correspondence. Federal Way v. Koenig, 167 Wn.2d 341, 217 P.3d 1172 (2009). Effective in 1016, the Washington Supreme Court adopted a rule (GR 31.1) that provides a presumption of access to such records, subject to all of the exemptions contained in the Public Records Act, as well as additional specific exemptions and a privacy-based “balancing test.”
The Freedom of Information Act applies to "any other body . . . which is primarily funded by [a] state or local authority." In syllabus point one of Blower v. Educational Broadcasting Authority, the West Virginia Supreme Court adopted a five-part test to identify whether a given entity qualifies as a state agency:
In determining whether a particular organization is a state agency, we will examine its legislative framework. In particular, we look to see if its powers are substantially created by the legislature and whether its governing board’s composition is prescribed by the legislature. Other significant factors are whether the organization can operate on a statewide basis, whether it is financially dependent on public funds, and whether it is required to deposit its funds in the state treasury.
182 W. Va. 528, 389 S.E.2d 739, 740 (1990).
The FOIA does not specifically apply to nongovernmental bodies whose members include governmental officials unless the body "is created by state or local authority or . . . is primarily funded by the state or local authority." W. Va. Code § 29B-1-2(3).
In Queen v. West Virginia University Hospitals, the state Supreme Court ruled the FOIA applies to the WVU Hospitals corporation (“WVUH”) because, even though it was a "private" corporation "established under the general corporate provisions of West Virginia law" it was "created to take over and operate the university's medical center, and the corporation's exclusive function was made possible by an enabling statute which "laid out very specific requirements that the corporation had to meet. . . . Unlike the normal corporate entity, the statute was the sine qua non leading to the incorporation of WVUH and that body was, therefore, created by state authority." 365 S.E.2d 375, 386-87 (1987). The primary factors leading to the court's decision in Queen were that the new corporation had "statutorily specified purposes and directors, primarily public officers, who have fiduciary duties to the people of the state." Id. at 379. The court found it significant that provisions in the statute creating WVUH mandated "openness and accountability in the management of the corporation." Liberally construing the disclosure provisions of the FOIA the court held that the hospital corporation is a public body under FOIA and its records are subject to disclosure. Id. at 377.
In contrast, the court has held that the West Virginia University Foundation is not a public body under the FOIA. 4-H Road Community Ass’n v. W. Va. Univer. Found., 182 W. Va. 434, 388 S.E.2d 308 (1989). In ruling that the hospital corporation, but not the foundation, was "created by state authority," the court delineated the important differences in the nature of the two corporations:
Although WVUH was incorporated under the general corporate provisions of state law, it was incorporated as such only after the legislature mandated its creation. Under the statute, the former Board of Regents was authorized to transfer the public hospital's assets to the proposed corporate entity that had "statutorily specified purposes and directors [appointed by the Governor and subject to Senate confirmation], primarily public officers [nine of the eighteen directors served by virtue of their positions with the Board of Regents or the University Hospital], who have fiduciary duties to the people of the State of West Virginia [prohibition of mortgaging, public conflict of interest statements and public audits, as mandated in the enabling legislation]." The statute further provided that the hospital employees of the former Board of Regents were to remain employed by the corporation without becoming employees of the corporation.
. . .
In the case before the Court today, the Foundation was formed by private citizens pursuant to the general corporate laws of the state. No legislative mandate for such an entity predates its incorporation. It is not located on state property; does not utilize state employees; and selection of its Board of Directors, and their duties, are governed by the corporation's by-laws. While the president of the University serves on the Board of Directors of the Foundation, the president serves by virtue of the Foundation's by-laws, rather than legislative mandate, and serves in an ex officio capacity.
4-H Road Cmty. Ass’n v. W. Va. Univ. Found., 388 S.E.2d at 311 (citations in original are omitted).