6. Advisory boards and commissions, quasi-governmental entities
1. The Public Records Law is silent on this point, but court decisions have applied the Law to the following advisory boards, commissions, and quasi-governmental entities, among others:
a. Birmingham Racing Commission: Financial records. Birmingham News Co. v. Birmingham Racing Comm'n, CV 87-501-622 MC (Cir. Ct. Jefferson Cnty., Ala., Equity Div., June 16, 1987):
[T]his court is not willing to so readily accept the proposition that The Commission is not some form of governmental body. Whether it is a state, county, or municipal agency, or some hybrid thereof, the Commission was created by the state and helps serve in a process designed to generate excess revenues for the benefit of the state . . . . As a public corporation of the state, charged with both legislative and judicial functions, The Commission falls within the purview of § 36-12-40.
Id. Some racing commission records were made confidential by statute after this decision; see Ala. Code §§ 11-65-10(10), -15, -18 (1994).
b. Health Care Authorities: Sales contracts. Care Auth. of Lauderdale Cnty., 61 So. 3d 1027 (Ala. 2010).
c. J.S.U. Reserve Public Relations Corporation: Financial records. Stone v. Consol. Publ'g Co., 404 So. 2d 678, 680 (Ala. 1981) (trial court found corporation to be alter ego for public university; see Consol. Publ'g Co. v. Stone, 6 Media L. Rep. (BNA) 2273, 2273-74 (Cir. Ct. Calhoun Cnty., Ala., Dec. 1, 1980)).
d. Water Works Board of the Town of Parrish: Books and records. Water Works Bd. of Town of Parrish v. White, 281 Ala. 357, 202 So. 2d 721 (1967).
e. Water Works & Sewer Board of the City of Talladega: Records. Water Works & Sewer Bd. of the City of Talladega v. Consol. Publ'g Inc., 892 So. 2d 859 (Ala. 2004).
f. State Universities: Books and records. Kendrick v. Advertiser Co., 213 So. 3d 573, 577 (Ala. 2016) (but holding particular request for student information was pre-empted/protected by the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g).
2. Alabama attorney general opinions have applied the Public Records Law to the following advisory boards, commissions, and quasi-governmental entities:
a. Alabama Peace Officers' Annuity and Benefit Fund: Records, including the names and mailing addresses of its members. Op. Att'y Gen. Ala. No. 2002-186, 2002 Ala. AG LEXIS 80 (Mar. 27, 2002); see also Ala. Acts No. 2021-268 (exempting Peace Officer Training Commission database records from disclosure under Section 36-12-40 of the Open Records Act).
b. Cahaba Heights Fire District: Computer database, minutes, contracts and other records. 227 Op. Att'y Gen. Ala. 42 (June 3, 1992).
c. City Water Boards: Water board records. 197 Op. Att'y Gen. Ala. 24 (Nov. 27, 1984). Board member salaries. Op. Att'y Gen. Ala. No. 2006-076, 2006 Ala. AG LEXIS 39 (Mar. 27, 2006).
d. East Alabama Water, Sewer, and Fire Protection District: District records. Att'y Gen. Ala. No. 2007-016, 2007 Ala. AG LEXIS 143 (Dec. 4, 2006).
e. Emergency Management Communications Districts: Records. Op. Att'y Gen. Ala. No. 2001-086 (Jan. 26, 2001).
f. Health Care Authorities: Executive salaries. Op. Att'y Gen. Ala. No. 2008-004, 2007 Ala. AG LEXIS 118 (Oct. 2, 2007).
g. Randolph County Hospital Board: Board minutes. 217 Op. Att'y Gen. Ala. 26 (Nov. 16, 1989).
h. Shoals Industrial Development Authority: Names and resumes of applicants for executive director of Authority, 222 Op. Att'y Gen. Ala. 48 (Mar. 20, 1991); biographical information from consulting firm regarding applicants for executive director of Authority, 223 Op. Att'y Gen. Ala. 19 (May 17, 1991).
i. State Universities: Athletic coach contracts. Op. Att'y Gen. Ala. No. 2007-067, 2007 Ala. AG LEXIS 40 (Apr. 3, 2007).
j. Wiregrass Mental Health Board Inc.: Employee lists and salary schedules. 171 Op. Att'y Gen. Ala. 14 (Apr. 12, 1978).
k. Cleburne County Volunteer Fire Department: Business records. Op. Att’y Gen. Ala. 16 (Dec. 12, 2012).
l. State Ethics Commission: Statements of economic interest. Op. Att’y Gen. Ala. 13 (Dec. 6, 2012).
m. Alabama Credit Union Administration: Enforcement orders. Op. Att’y Gen. Ala. 42 (Apr. 22, 2015).
Alaska's public records law covers every "public agency," which is defined broadly to include boards, commissions, authorities, public corporations, and other instrumentalities of the state or a municipality. AS 40.25.220(2). A number of statutes governing public authorities contain specific reference to this. For example, the Alaska Municipal Bond Bank Authority is subject by law to the general provisions requiring public access to records contained in AS 40.25.110 to -.120, see AS 44.85.400. The Alaska Supreme Court has held that even a critical performance evaluation from an advisory board concerning an agency head is a matter of public record. Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 591 (Alaska 1990). It also held that the report of an ad hoc "Blue Ribbon Fiscal Panel" created by the mayor to advise him about fiscal policy was public, because the committee served a governmental function, dealt with matters of public concern, and was a public agency or instrumentality. The report was the product of a public process and was intended for public dissemination. Id., 794 P.2d at 592. A superior court held that an Exchange Carrier's Association, created by the telephone industry at the direction of the state public utilities commission, was a public entity. See, General Communications Inc., v. APUC and Alaska Exchange Carrier's Ass'n, Case No. 3AN -90-1105 Civ. (Superior Ct., 3rd Jud. Dist. at Anchorage).
Section 7920.510 of the Government Code provides that any boards, commissions or agencies that are a part of a political entity listed therein, e.g., city, county, school district, municipal corporation, political subdivision, etc., are subject to the CPRA. Cal. Gov't Code § 7920.510. But see Cal. State Univ. (Fresno) v. Superior Court, 90 Cal. App. 4th 810, 828, 108 Cal. Rptr. 2d 870 (2001) (nonprofit auxiliary corporation affiliated with a state university and which operated multi-purpose arena being built on university campus was not a “state agency” under the CPRA).
Advisory boards and commissions and other quasi-governmental entities are subject to FOIA if they meet the four-part test set forth in Bd. of Trustees v. FOIC, 181 Conn. 544, 436 A.2d 266 (1980) or the definition of public agency.
Advisory boards and commissions and quasi-governmental entities are covered if they (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(k); see Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984) (waste authority that was established “to develop and implement a statewide solid waste management plan” and partially publicly funded was a public body subject to FOIA).
District of Columbia
If the documents at issue are under the control of an agency by virtue of its relationship with an advisory board, a claimant could argue the documents are covered by the D.C. Act. See Kane v. District of Columbia, 180 A.3d 1073, 1077-79 (D.C. 2018); Belth, 115 Daily Washington Legal Rptr. at 2281.
In response to State ex rel. Tindel v. Sharp, 300 So. 2d 750 (Fla. 1st DCA 1974), which held that a screening committee, hired to screen school superintendent applications, was an “independent contractor” and therefore not within the scope of Chapter 119, the Legislature amended the definition of “agency” to include “any other public or private agency, person, partnership, corporation or business entity acting on behalf of any public agency.” F.S. § 119.011(2) (emphasis added). Under the revised definition of “agency,” records of advisory bodies, agents, or independent contractors, public or private, may be subject to Chapter 119 depending on the totality of the factors analysis noted above. Op. Att’y Gen. Fla. 91-99 (1991) (private nonprofit corporation, leasing hospital facilities of public hospital, requires management records of hospital to be public records); Op. Att’y Gen. Fla. 89-52 (1985) (public records status dependent upon the powers and duties imposed upon non-for-profit corporation under lease agreement); Op. Att’y Gen. Fla. 92-037 (1992) (Tampa Bay Performing Arts Center found subject to Chapter 119 because trustees were government officials, it utilized city property and performed a government function); Op. Att’y Gen. Fla. 92-53 (1992) (Ringling Brothers Museum of Art Foundation was a private entity acting on behalf of public agency; thus records relating to foundation’s activities were public records); Times Publ’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990) (White Sox baseball organization subject to Chapter 119 for lease documents and other records relating to negotiations for use of municipal stadium); Shevin v. Byron, Harless, Schaffer, Reid & Ass’ns Inc., 379 So. 2d 633 (Fla. 1980) (applying Chapter 119 to a consultant hired by electric authority); Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (groups, public or private, which act in any advisory capacity to a public board or commission are subject to the Sunshine Law); Schwartzman v. Merritt Island Volunteer Fire Dep’t, 352 So. 2d 1230 (Fla. 4th DCA 1977) (because it acts on behalf of a public agency, a volunteer fire department is an agency and its records are public records).
Records of advisory boards and commissions and quasi-governmental entities that are prepared, maintained or received in the performance of a service or function by or for or on behalf of a Georgia agency are subject to the Act. O.C.G.A. § 50-18-70(b)(2). Smith v. Northside Hosp., 302 Ga. 517, 807 S.E.2d 909 (2017) (records of privately-restructured public hospital authority health systems are subject to the Act); Cent. 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); Nw. 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. Bd. of Educ., 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 Cty. 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 Publ’g Co. v. Bd. 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. Publ’g Co. v. Bd. 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). See also 1985 Op. Att'y Gen. No. U85-42 (Advisory Committee on Area Planning and Development subject to Act).
Subunits of the legislature, even if limited in duration, are included within the term "agency" for the purposes of the UIPA provided that they are performing a government function. See Commission on Sexual Orientation and the Law, OIP Op. Ltr. No. 95-1 (Jan. 1, 1995) (finding Commission on Sexual Orientation and the Law to be an "agency" subject to the UIPA); Review Commission of State Water Code, OIP Op. Ltr. No. 94-2 (Mar. 21, 1994) (finding Water Code Commission to be an "agency" subject to the UIPA).
The definition of public agency includes “any advisory commission, committee, or body created by statute, ordinance, or executive order to advise the governing body of a public agency, except medical staffs or the committees of any such staff.” Ind. Code § 5-14-3-2(q)(5). Additionally, the following are “public agenc[ies]” under the Access to Public Records Act: school corporations; certain law enforcement agencies; license branches; and the state lottery, gaming, and horse racing commission. Id. Ind. Code § 5-14-3-2(q).
These are subject to the act if publicly funded. Kan. Att’y Gen. Op. 1986-48.
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency established, created, and controlled are defined as public agencies and therefore subject to the Act. See Ky. Rev. Stat. 61.870(1)(j). Also, entities with governing bodies a majority of which are appointed by a public agency are public agencies. Ky. Rev. Stat. 61.870(i). However, committees of hospital medical staffs are not defined as public agencies and are not covered by the Act. Id.
Advisory boards, commissions and task forces, and "quasi-public nonprofit corporations designated . . . to perform a governmental or proprietary function" are covered by the statute. La. Rev. Stat. Ann. § 44:1. See, e.g., Op. Att'y Gen. 86-515-A (not-for-profit hospital is designated to perform a governmental or proprietary function and hence is covered); Op. Att'y Gen. 84-66 (parish [county] council on aging, a quasi-public nonprofit corporation created pursuant to state statute, is covered); But see La. Rev. Stat. Ann. § 17:3390, supra (university foundations); Op. Att'y Gen. 92-404 (parish voluntary councils on aging that receive and expend governmental funds are subject to act "to the extent that they [perform] governmental functions . . ., [receive and disburse] public funds, and/or [use] public facilities and resources," but not covered as to expenditures of private funds not commingled). See also Op. Att'y Gen. 92-476 (Lake Pontchartrain Basin Foundation is covered); Op. Att'y Gen. 92-434 (nonprofit corporation affiliated with state-owned medical facility); Op. Att'y Gen. 84-120 (Convention and Visitors Bureau created by parish [county] governing authority is covered); Op. Att'y Gen. 93-220, and Op. Att'y Gen. 81-1153 (Board of Commissioners of the City Park Improvement Association possesses policy-making, advisory, or administrative functions and hence is covered); Op. Att'y Gen. 93-780 (Records of TMSEL, a private company which operates RTA (itself a public body created by the legislature to operate New Orleans public transit system), are public records to the extent that they concern dealings with the RTA; Op. Att'y Gen. 93-583 (Louisiana Insurance Guaranty Association, a "nonprofit unincorporated legal entity" created to address public insurance concerns, is subject to Public Records Act); Op. Att'y Gen. 94-442 (FloodComm Corp., a "nonprofit public benefit" corporation, created by Orleans Levee district to own, lease, and develop properties, is covered by act); Op. Att'y Gen. 94-259 (members of board of directors of Louisiana Development Partnerships Inc., a nonprofit, government created corporation are subject to act).
The records of advisory boards, commissions, and other bodies created by government action are generally public, unless created by executive order and designated confidential by the terms of the order establishing the body. 1 M.R.S.A. § 402(3)(J).
The full membership meetings of any association, the membership of which is composed of counties, municipalities, school administrative units or other political or administrative subdivisions, are open to the public – along with boards, commissions, agencies or authorities of any such subdivisions, or any combination of any of these entities. 1 M.R.S.A. § 402(2)(D).
There are some 42 quasi-governmental entities in Massachusetts, ranging in size from six to 6,000 employees, according to the Massachusetts Public Interest Research Group. MassPIRG Education Fund, Out of the Shadows: Massachusetts Quasi-Public Agencies and the Need for Government Transparency (Spring 2010). Yet these bodies’ status under the Public Records Law remains murky at best. MassPIRG reports that although most responded to its formal inquiries for information, others, such as the Commonwealth Zoo Corporation, claimed they were not subject to the Public Records Law – and still others, such as the Steamship Authority, ignored the requests altogether. Id. at 18-19.
See Lambert v. Exec. Dir. of the Judicial Nominating Council, 425 Mass. 406, 409, 681 N.E.2d 285 (1997) (records of judicial nominating council not “public records” subject to disclosure, because council is a creature of the Governor, who is not explicitly an “agency, executive office, department, board, commission, bureau, division or authority of Commonwealth pursuant to Public Records Law); Globe Newspaper Co. v. Mass. Bay Transp. Auth. Retirement Bd., 416 Mass. 1007, 622 N.E.2d 265 (1993) (public agency retirement board created through collective bargaining agreement not a “board” of the Commonwealth and not subject to Public Records Law); Wallerstein v. Bd. of Bar Exam’rs, 414 Mass. 1008, 610 N.E.2d 891 (1993) (Board of Bar Examiners not required to disclose applicant's score on bar exam); see also Kettenbach v. Bd. of Bar Overseers, 448 Mass. 1019, 863 N.E.2d 36 (2007) (holding that Board of Bar Overseers and Bar Counsel, as members of the judicial branch of government, are not subject to the public records law and not obligated to produce documents relating to a former judge’s status as a member of the bar).
The definition of a "public body" includes "[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof." Mich. Comp. Laws Ann. § 15.232(h)(i). The definition also includes "[a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof." Id. § 15.232(h)(iii).
These are covered if "created by the Constitution or by law, executive order, ordinance or resolution." § 25-61-3(a).
Advisory boards are subject to the Sunshine Law. Mo.Rev.Stat. § 610.010(4)(e); MacLachlan v. McNary, 684 S.W.2d 534 (Mo.Ct.App. 1984) (holding that Annexation Study Commission, which considered and recommended changes in delivery of governmental changes to County Executive, is subject to Sunshine Law).
Quasi-public governmental bodies are subject to the Sunshine Law. Mo.Rev.Stat. § 610.010(4)(f) (definition of “public governmental body” includes “quasi-public governmental bodies”); Remington v. City of Boonville, 701 S.W.2d 804, 806-807 (Mo.Ct.App. 1985).
Quasi-public governmental bodies include religious and charitable associations, urban development corporations and general not-for-profit corporations organized or authorized to do business in Missouri under the provisions of Chapters 352, 353 and 355, Mo.Rev.Stat., respectively, and unincorporated associations which have as their primary purpose either (1) to enter into contracts with public governmental bodies or (2) to engage primarily in activities carried out pursuant to an agreement or agreements with public governmental bodies. Mo.Rev.Stat. § 610.010(4)(f). See North Kansas City Hospital Board of Trustees v. St. Luke’s Northland Hospital, 984 S.W.2d 113, 117-188 (Mo.Ct.App. 1998) (holding that non-profit health corporation that managed physician practices and operated medical facilities for municipal hospital under direction of hospital’s Board of Trustee was “engaged primarily in activities carried out pursuant to an agreement” with the Board and was therefore a quasi-public governmental body subject to the Sunshine Act.)
Quasi-public governmental bodies do not include urban redevelopment corporations which are privately owned, operated for profit, and do not expend public funds. Such urban redevelopment corporations are not subject to the Sunshine Law. Mo.Rev.Stat. § 610.010(4). However, redevelopment corporations that have the power to exercise eminent domain, allocate or issue tax-free debt, tax credits, or tax abatements are subject to the Sunshine Law, but such coverage may only extend to such records and meetings that address the expenditure of public funds. Mo.Rev.Stat § 610.010(4)(f)(b).
Quasi-judicial bodies are subject to the Sunshine Law. Remington v. City of Boonville, 701 S.W.2d 804, 806 (Mo.Ct.App. 1985) (holding that city’s board of zoning adjustment was subject to the Sunshine Law); But see Nasrallah v. Missouri Board of Chiropractic Examiners, 1996 WL 678640 at *5-6 (Mo.Ct.App. 1996) (when an administrative agency acts in a quasi-judicial capacity, adjudication is closed). However, subsequently, a Missouri Court of Appeals followed the reasoning of Remington, and in so doing held “Nashrallah has absolutely no precedential value, as the case was transferred to the Missouri Supreme Court and later dismissed.” Wilkendon Partnership v. St. Louis County Board of Equalization, 497 S.W.3d 873 (Mo.Ct.App. 2016) (rejecting the argument that a public governmental body becomes a judicial entity not subject to the Sunshine Law when performing adjudicative functions).
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 Montana 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.
Records of advisory boards and commissions are public records to the extent they fit the definition in Neb. Rev. Stat. §84-712.01(1) which provides that the term "public records" "shall include all records and documents, regardless of physical form, of or belonging to . . . any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing," unless any other statute expressly provides that particular records shall not be made public.
As discussed, the definition of “public body” covers advisory boards and commissions and the two Professional Firefighters cases hold that the Statute can apply to quasi-governmental entities. See RSA 91-A:1-a,VI.
The records of any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards, are subject to OPRA. See N.J.S.A. 47:1A-1.1; see also Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489, 504-05 (2011) (holding that the New Jersey State League of Municipalities is a “public agency” under OPRA because, among other things, it is controlled by elected officials from the municipalities it represents, a combination of political subdivisions created the League, and the League conducts educational programs for municipal officials and brings lawsuits that will benefit municipalities); Times of Trenton Pub. Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519, 535-36 (2005) (holding that the nonprofit corporation was created by a public subdivision and therefore it was a “public agency” within the meaning of OPRA).
Advisory boards, commissions, committees, agencies or entities created by the constitution or any branch of government that receives any public funding, are “public bodies” within the meaning of the Act. Accordingly, their records are subject to review under the Act. NMSA 1978 § 14-2-6(F).
The FOIL definition of agency expressly includes a board, commission, committee, public authority, council, office or other governmental entity performing a governmental function. N.Y. Pub. Off. Law § 86(3) (McKinney 1988). On the question of access to records of bodies serving in an advisory capacity, see Justice v. King, 60 A.D.3d 1452, 876 N.Y.S.2d 301 (4th Dep’t 2009) (holding that a corporation serving parolees that has contracted with the state on a fee-for-service basis is not an agency for purposes of FOIL) (citing Farms First v. Saratoga Econ. Dev. Corp., 222 A.D.2d 861, 861, 635 N.Y.S.2d 720, 720 (3d Dep’t1995)); Reese v. Daines, 62 A.D.3d 1254, 877 N.Y.S.2d 801 (4th Dep’t 2009) (holding that the Western New York Health System, Inc. is a public body subject to FOIL requirements while it oversees the merger of a public benefit corporation and a private entity); Buffalo News Inc. v. Buffalo Enterprise Development Corporation, 173 A.D.2d 43, 578 N.Y.S.2d 945 (4th Dep’t 1991), aff’d 84 N.Y.2d 488, 644 N.E.2d 277, 619 N.Y.S.2d 695 (1994) (non-profit city economic development corporation acting as city’s agent was government agency subject to FOIL); Syracuse United Neighbors v. City of Syracuse, 80 A.D.2d 984, 437 N.Y.S.2d 446 (4th Dep’t 1981), appeal dismissed, 55 N.Y.2d 995, 434 N.E.2d 270, 449 N.Y.S.2d 201 (1982) (granting access to the documents of two advisory committees where the records were kept and held by the municipality). But see Baumgarten v. Koch, 97 Misc.2d 449, 411 N.Y.S.2d 487 (Sup. Ct. 1978) (denying access to records of the Mayor’s Committee on the Judiciary on the grounds that the Committee performed a purely advisory function of merely making recommendations to the Mayor on judicial appointments).
The records of advisory boards and commissions are covered in addition to every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or any county, unit, special district or other political subdivision. G.S. § 132-1(a).
The open records law expressly applies to task forces and working groups created by the individual in charge of a state agency or institution. N.D.C.C. § 44-04-17.1(13). Additionally, because almost all advisory boards, commissions, and quasi-governmental entities expend public funds or are supported in whole or in part by public funds, they would be within the open records law. It is worth noting all records of the Board of Medical Examiners investigative panels (other than their financial records) are confidential. N.D.C.C. § 43-17.1-08.
The statute does not address advisory boards, commissions, and quasi-governmental entities, but if such a board or commission possesses records generated in the course of performing a duty delegated by a public office and such records may be subject to some degree of control by the office, it is likely that the records would be available to the public under the public records statute. See State ex rel. Mazzaro v. Ferguson, 49 Ohio St. 3d 37, 550 N.E.2d 464 (1990); but see State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. Of Comm’s, 128 Ohio St.3d 256, 2011-Ohio-625.
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(2). The Grand River Dam Authority Lakes Advisory Commission, created to advise the GRDA and to provide a list of names from which the governor must appoint as a GRDA Board member, is subject to the Act. 2002 OK AG 44. The Silver Hair Legislature, composed of citizens who meet annually at the state capitol to discuss issues pertaining to senior citizens, is covered by the Act. 2002 OK AG 42.
No advisory boards, commissions or quasi-governmental bodies are explicitly identified in the Law. Under the old act, in effect before 2008, purely advisory entities were not considered agencies subject to the disclosure requirements of that law. See Safety, Agric., Villages and Env’t (S.A.V.E.) v. Delaware Valley Reg’l Planning Comm’n, 819 A.2d 1235 (Pa. Commw. Ct. 2003) (explaining that the Delaware Valley Regional Planning Commission is not an agency subject to the old law because it acts only in an advisory capacity and “cannot be considered an organization performing ‘essential’ services”).
Subject to the APRA. R.I. Gen. Laws § 38-2-2(1) (2012); see also R.I. Gen. Laws § 42-35-1(2).
All departments of the state or political subdivision of the state including boards and commissions and quasi-governmental bodies are subject to the act. S.C. Code Ann. §30-4-20(a) (1991). The Supreme Court of South Carolina applied this section to hold that a committee appointed by a city manager to review proposals for a city contract was a "public body" and subject to the FOIA. Quality Towing Inc. v. City of Myrtle Beach, 547 S.E.2d 862 (S.C. 2001).
These entities are probably covered, but subject to “decisional or deliberative” process exception. SDCL §1-27-1.9.
Presumably open. A sports authority created pursuant to the Sports Authorities Act, T.C.A. § 7-67-109, is a governmental agency within the meaning of the Act. Op. Att'y Gen. No. 96-011 (Feb. 6, 1996). City Press Communications, LLC v. Tennessee Secondary School Athletic Association, 447 S.W. 3d. 230 (Tenn. Ct. App. 2014) (association that governs interscholastic athletic competition is the functional equivalent of a governmental agency and its records concerning whether a school violated the associations bylaws were public).
The following were found to be governmental bodies under the Act:
1. a search advisory committee established by the Board of Regents of the Texas A & M System to recommend candidates for the position of President of Texas A & M University, and whose members were reimbursed for the expense of travel, meals and lodging. Tex. Att'y Gen. ORD-273 (1981).
2. the North Texas Commission constituted a “governmental body” because its contract with the City of Fort Worth failed to impose on the commission a specific and definite obligation to provide a measurable amount of service in exchange for a certain amount of money, as one would expect to find in a typical arms-length contract for services between a vendor and a purchaser. Tex. Att'y Gen. ORD-228 (1979).
The following did not qualify as governmental bodies under the Act:
1. the advisory board of the Children’s Advocacy Center of Texas (“CACCT”). Tex. Att'y Gen. ORD-5293 (2004). Although the CACCT was a governmental body subject to the Act, its advisory board was not because it served voluntarily, on an as-needed basis, in a nonvoting capacity, and received no public funds.
2. the Fiesta San Antonio Commission, which was designated by city ordinance as fiesta planning agency but received no public funds. Tex. Att'y Gen. ORD-569 (1990).
3. a mayor’s task force that examined city governmental structure but did not spend and was not supported by public funds. Tex. Att'y Gen. ORD-317 (1982).
GRAMA applies to “every office, agency, board, bureau, committee, department, advisory board, or commission” of any executive, legislative, or judicial branch entity described above that is “funded or established by the government to carry out the public’s business.” Utah Code § 63G-2-103(11)(b).
In addition, the budget documents and financial statements of “public associations,” such as the Utah Association of Counties, are public records if fifty percent or more of the public association’s members are elected or appointed public officials from Utah and membership dues or other financial support come from public funds. Id. § 63G-2-901.
Although the Public Records Act makes no such distinction, the open meeting statute expressly exempts “councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy.” 1 V.S.A. § 310(4); see also Browning v. State, No. 272-5-14, 2014 Vt. Super. LEXIS 106, *14-15 (Vt. Super. Wash. County Dec. 10, 2014) (recognizing that the Governor’s Business Advisory Council on Health Care Financing and the Governor’s Consumer Advisory Council on Health Care Reform, whose purpose is to “provide the Governor with advice and information on health care reform,” were exempt from the state’s open meeting law).
Although the University of Vermont operates as a separate corporate entity from the State of Vermont, the Vermont legislature made explicit that UVM “shall be recognized and utilized as an instrumentality of the State for providing public higher education” and provided that the state “shall, from time to time, appropriate such sums as it deems necessary for the support and maintenance of [UVM].” See 16A V.S.A. § 1-1. Thus, the Public Records Act assumes that the University of Vermont or the Vermont State Colleges fall under the definition of public agencies. See 1 V.S.A. § 317(c)(23) (exempting “data, records, or information produced or acquired by or on behalf of faculty, staff, employees, or students of the University of Vermont or the Vermont State Colleges in the conduct of study, research, or creative efforts on medical, scientific, technical, scholarly, or artistic matters . . . until such data, records, or information are published, disclosed in an issued patent, or publicly released by the institution or its authorized agents.”). Similarly, the Vermont Supreme Court has held that the legislature has sufficient authority over the University of Vermont to render it a public body subject to Vermont’s Public Records Act. See State v. Curley-Egan, 2006 VT 95, ¶ 15, 180 Vt. 305, 311-12 (Vt. 2006); Sprague v. Univ. of Vermont, 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v Univ. of Vermont, 159 Vt. 133, 137-38, 616 A.2d 224 (Vt. 1992); see also Caledonian-Record Publ’g Co. v. Vt. State Colleges, 2003 VT 78 ¶, 3, 833 A.2d 1273, 1275 (Vt. 2003) (Vermont State College and Lyndon State College stipulated that they are instrumentalities of the State, and thus subject to the Public Records Act).
The Act’s definition of “public body” applies to any committee or subcommittee, or any other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. The presence of private sector or citizen members on such a body does not excuse the body from application of the Act. Va. Code Ann. § 2.2-3701.
Such entities fall within the broad definition of “agency” under the Act. RCW 42.56.010(1).
Advisory boards and commissions, quasi-governmental entities are also likely to be held to constitute a "board, department, commission, council or agency" of a governmental unit, or to be created or primarily funded by such a body. In any of these circumstances, the Freedom of Information Act will cover the organization's records. But see, Mayo v. W. Va. Secondary Schs. Activities Comm’n, 223 W. Va. 88, 672 S.E.2d. 224 (2008) (applying five-part test and holding Commission not a state agency because only one of five-part test satisfied).
Quasi-governmental entities’ records are included, as are officially designated advisory commissions, cf. Outagamie Cty. v. Smith, 38 Wis. 2d 24, 155 N.W.2d 639 (1968) (meetings of same) but unofficial boards and commissions are not, subject to (5). A private corporation that performs government functions may be subject to the Open Records law as a quasi-governmental corporation, based on the factors set forth in State v. Beaver Dam Area Dev. Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295.
The Wyoming Supreme Court has said that the Public Records Act will receive a liberal construction in favor of disclosure and against withholding, so it is likely that the language in Wyo. Stat. § 16-4-201 (a)(v) will be interpreted to include advisory boards. Sheridan Newspapers Inc. v. City of Sheridan, 660 P.2d 785, (Wyo. 1983); but cf. Wyo. Attorney General Op. 73-17 (1973).