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6. Advisory boards and commissions, quasi-governmental entities

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  • Alaska

    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).

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  • Arizona

    (This section is blank. See the point above.)

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  • Arkansas

    Advisory boards and committees are subject to the FOIA if they are directly supported by public funds. Ark. Op. Att’y Gen. Nos. 99-407, 95-128, 84-091.

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  • California

    Section 6252(a)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 § 6252(a).  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).

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  • Colorado

    See Denver Post v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).

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  • Connecticut

    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.

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  • Delaware

    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(c).

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  • 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 Belth, 115 Daily Washington Legal Rptr. at 2281.

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  • Georgia

    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 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).  See also 1985 Op. Att'y Gen. No. U85-42 (Advisory Committee on Area Planning and Development subject to Act).

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  • Hawaii

    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).

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  • Idaho

    There have been no reported decisions on the applicability of the Idaho Public Records Act to such bodies. To the extent that such bodies meet the broad definition of either a “state agency” or “local agency,” their records would be considered “public records” under the act.

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  • Illinois

    Advisory boards and commissions are subject to the Act, because the FOIA defines “public body” broadly. See 5 ILCS 140/2. Quasi-governmental entities may be public bodies depending on the test enunciated in Rockford Newspapers Inc.  See “bodies receiving public funds or benefits,” supra.

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  • Indiana

    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).

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  • Iowa

    The records of advisory boards, commissions and quasi-governmental entities 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).

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  • Kansas

    These are subject to the act if publicly funded. Kan. Att’y Gen. Op. 1986-48.

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  • Kentucky

    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.

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  • Louisiana

    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).

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  • Maine

    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).

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  • Maryland

    The PIA generally applies.  See, e.g., Andy's Ice Cream, Inc. v. City of Salisbury, 125 Md. App. 125, 724 A.2d 717 (1999) (finding Salisbury Zoo Commission subject to the PIA).

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  • Michigan

    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(d)(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." Mich. Comp. Laws Ann. § 15.232(d)(iii).

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  • Montana

    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.

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  • Nebraska

    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.

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  • Nevada

    The NPRA applies to an “institution board, commission, bureau, council, department, division, authority or other unit of government of this State, including, without limitation, an agency of the Executive Department, or of a political subdivision of this State.” NRS 239.005(5).

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  • New Hampshire

    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.

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  • New Jersey

    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.)

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  • North Carolina

    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).

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  • North Dakota

    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.

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  • Ohio

    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.

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  • Oklahoma

    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 ORA. 2002 OK AG 42.

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  • Oregon

    Whether such entities are subject to the Public Records Law is to be tested by the six factors of Marks v. McKenzie High School, supra.

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  • Rhode Island

    Subject to the APRA.  R.I. Gen. Laws § 38-2-2(1) (2012); see also R.I. Gen. Laws § 42-35-1(2).

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  • South Carolina

    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).

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  • South Dakota

    These entities are probably covered, but subject to “decisional or deliberative” process exception. SDCL §1-27-1.9.

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  • Tennessee

    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).

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  • Texas

    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).

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  • Utah

    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.

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  • Vermont

    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. University of Vermont, 661 F. Supp. 1132, 1138 (D. Vt. 1987); Animal Legal Defense Fund Inc. v University 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).

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  • Virginia

    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.

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  • Washington

    Such entities fall within the broad definition of “agency” under the Act. RCW 42.56.010(1).

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  • West Virginia

    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).

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  • Wyoming

    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).

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