8. Other bodies to which governmental or public functions are delegated

By its terms, the Alabama Open Meetings Act applies to all boards, bodies, and commissions of the executive and legislative departments of the state or its political subdivisions or municipalities which expend or appropriate public funds; all multimember governing boards of departments, agencies, institutions, and instrumentalities of the executive and legislative departments of the state or its political subdivisions or municipalities, including, without limitation, all corporations and other instrumentalities whose governing boards are comprised of a majority of members who are appointed or elected by the state or its political subdivisions or municipalities; and all quasi-judicial bodies of the executive and legislative departments of the state and all standing, special, or advisory committee or subcommittees of, or appointed by, the body. Ala. Code § 36-25A-2(4); Op. Att’y Gen. Ala., No.2006-108 (volunteer fire department subject to the Alabama Open Meetings Act); Op. Att’y Gen. Ala., No. 2006-122 (county hospital board subject to the Alabama Open Meetings Act); Op. Att’y Gen. Ala., No.2007-039 (community action agencies subject to the Alabama Open Meetings Act). But see Op. Att’y Gen. Ala. 2009-006 (Health Care Authority of City of Huntsville specifically exempted from the Alabama Open Meetings Act under Ala. Code § 22-21-316).

The Alabama Open Meetings Act specifically excludes from coverage (1) legislative party caucuses or coalitions; (2) Alabama appellate or trial courts, except as required by the constitution of Alabama or anybody governed by rules of the Alabama Supreme Court; and (3) voluntary membership associations comprised of public employees, counties, municipalities, or their instrumentalities which have not been delegated any legislative or executive functions by the Legislature or Governor. Ala. Code § 36-25A-2(4).

Neither the OMA nor case law addresses the issue of meetings involving public business delegated to "private" groups. In the era of "privatization," this is an increasing concern. The OMA does govern councils, commissions and other similar bodies of public entities with the authority to advise or make recommendations to the public entity, as well as those that have the authority to establish policies or make decisions. So, depending on the facts, many delegated functions will probably be covered. A superior court held that meetings of phone industry representatives carrying out functions delegated to them by an order of the state's Public Utilities Commission (predecessor of the Regulatory Commission of Alaska), concerning preparing, filing and supporting an access tariff, were subject to the OMA. General Communications Inc. v. APUC and Alaska Exchange Carriers Ass'n, Case No. 3AN -90-1105 Civ. In addition, local government units can go beyond the requirements of the state law in providing access. And, in the related area of access to records, compare, e.g., Anchorage Municipal Code 3.90.020 (expressly making records in the hands of private contractors that deal with their public contracts "public records"), and AS 40.25.220(6), which now makes records "developed or received by a . . . public contractor for a public agency" available as "public records."

“Institutions” or “instrumentalities” of a public body, including without limitation “all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision” are subject to the OML.  A.R.S. § 38-431(6) (emphasis added).  To be an “institution,” the entity must be “a creation of the law itself, . . . rather [than] the creation of a group of private individuals acting together as authorized by Arizona’s statutes . . . .”  Prescott Newspapers, Inc.  v. Yavapai Cmty. Hosp. Ass'n, 163 Ariz. 33, 39, 785 P.2d 1221, 1227 (Ct. App. 1989).  An “instrumentality” must be “something that serves as an intermediary or agent through which one or more functions of a controlling force are carried out: a part, organ or subsidiary branch esp. of a governing body.”  Id. (quoting Webster’s Third New International Dictionary 1172); see Ariz. Att’y Gen. Op. No. I07-001 (finding the Board of Trustees appointed to administer the Northern Arizona Employees Benefits Trust is an instrumentality of the participating political subdivisions and therefore falls within the definition of a public body).

If decision-making authority has been delegated by the governing body to a particular group, the open meetings requirement goes along with the delegation. Baxter Cnty. Newspapers, Inc. v. Med. Staff of Baxter Gen. Hosp., 273 Ark. 511, 622 S.W.2d 495 (1981). For example, a committee appointed by a school board to screen candidates for superintendent is a governing body, since it has been assigned the task of eliminating candidates from consideration. Ark. Op. Att’y Gen. No. 94-339.

The Bagley-Keene Act applies to all multimember bodies that exercise authority delegated to them by a state body. Cal. Gov't Code § 11121(b).

The Brown Act applies to all multimember bodies that govern a private entity and that are created by a legislative body in order to exercise authority delegated to it by the legislative body. Cal. Gov't Code § 54952(c)(1)(A). For example, the board of directors of a private corporation is a legislative body when formed to design, construct and operate an export facility on land leased from the city. Int’l Longshoremen's and Warehousemen's Union v. Los Angeles Export Terminal, 69 Cal. App. 4th 287, 295-96, 81 Cal. Rptr. 2d 456 (1999). Similarly, a private non-profit corporation formed to administer the use of funds raised through the city's tax assessments on local businesses is a legislative body when it was formed to "take over administrative functions that normally would be handled by [the] City" and the city played a role in the corporation's creation. Epstein v. Hollywood Entertainment Dist. II Business Improvement Dist., 87 Cal. App. 4th 862, 869-70, 104 Cal. Rptr. 2d 857 (2001).

The Brown Act’s obligations also were held to be enforceable by the general public against a corporation that had agreed by contract with the State Department of Education to comply with the Brown Act. Service Emps. Int’l Union, Local 99 v. Options-A Child Care and Human Servs. Agency, 200 Cal. App. 4th 869, 881-82, 133 Cal. Rptr. 3d 73 (2011).

Governing Boards of Universities.

As amended in 1987, Colo. Rev. Stat. § 24-6-402(2)(a) declares that meetings of the Board of Regents of the University of Colorado or any other governing board of a state institution of higher education are open to the public. Colo. Sess. Laws 1987, ch. 166, § 1.

The 1987 amendment legislatively reversed the Colorado Supreme Court's decision in Associated Students v. Regents of University of Colorado, 189 Colo. 482, 543 P.2d 59 (1975), which had held the Board of Regents exempt from the Sunshine Law.

The 1991 amendments include the governing board of any state institution of higher education, and specifically the Regents of the University of Colorado, within the definition of a "state public body" subject to Sunshine Law. Colo. Rev. Stat. § 24-6-402(1)(d).

A search committee of a state public body or local public body shall establish job search goals, including the writing of the job description, deadlines for applications, requirements for applicants, selection procedures, and the time frame for appointing or employing a chief executive officer of an agency, authority, institution, or other entity at an open meeting. A list of all finalists being considered for a position shall be made public by the search committee no less than fourteen days prior to the first interview conducted for the position. Records submitted by or on behalf of a finalist for such position shall be subject to the provisions of Colo. Rev. Stat. § 24-72-204(3)(a)(XI). Colo. Rev. Stat. § 24-6-402(3.5).

Student Loan Authority. Meetings of the Board of Directors of the Colorado Student Obligation Board Authority are required to be open to the public by Colo. Rev. Stat. § 23-3.1-205(2).

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. Gen. Stat. §1-200(1)(A).

These bodies 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. See 29 Del. C. § 10002(k). This includes a committee appointed by the General Assembly. Id. Agencies covered by the APA are required to hold public hearings. Id. §§ 10117, 10124.

The Open Meetings Act applies to meetings of "a board of directors of an instrumentality."  D.C. Code Ann. § 2-574(3).

When public officials delegate de facto authority to act on their behalf in preparation of plans on which foreseeable action will be taken, persons delegated that authority stand in the shoes of the public officials insofar as application of Sunshine Law is concerned. News Press Publ’g Co. v. Carlson, 410 So. 2d 546 (Fla. 2d DCA 1982).

The issue of whether such authority has been delegated often arises with regard to staff meetings. Meetings of staff of public boards or commissions are not ordinarily subject to section 286.011. Inf. Op. Att’y Gen. Fla. to Mr. William Candler (December 17, 1974); accord Occidental Chem. Co. v. Mayo, 351 So. 2d 336; Op. Att’y Gen. Fla. 81-51 (1981) (meetings of staff to evaluate proposed service bids and to negotiate proposed contracts with the winning bidder are not subject to the Sunshine Law); see also Godheim v. City of Tampa, 426 So. 2d 1084 (Fla. 2d DCA 1983) (negotiation meetings conducted by city staff members with two competing vendors were not subject to the Sunshine Law).

However, when a member of the staff ceases to function in his capacity as a staff member of the board or commission, and is appointed to a committee which is delegated authority normally within the governing body, he loses his identity as staff while operating on that committee and is accordingly included within the Sunshine Law. News Press Publ’g Co. v. Carlson, 410 So. 2d 546 (formalized budget committee of a hospital district responsible for preparing a budget and submitting it to the district’s governing board for approval is required to meet in the sunshine); see also Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (applying section 286.011 to a staff search committee for a law school dean since the committee performs a decision-making function in screening applicants).

In Memorial Hospital-West Volusia Inc. v. News-Journal Corp. (Memorial I), the court held that, absent a statutory exclusion, private not-for-profit corporations to which operation of public hospital facilities have been transferred are acting on behalf of a state agency in performing and carrying out obligations under their agreement and, therefore, must comply with open records and meetings laws. 729 So. 2d 373 (Fla. 1999). Further, the exclusion that was created for records and meetings of corporations that lease public hospitals if certain conditions are met could not be applied retroactively. Mem’l Hosp.-W. Volusia Inc. v. News-Journal Corp., 784 So. 2d 438 (Fla. 2001) (Memorial II).

The Act has been broadly construed to apply to any group that performs any function of a government entity. See Red & Black Publ’g Co. v. Bd. of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993). Meetings of groups serving a governmental purpose are subject to the Act's requirements, see, e.g., Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994), as are private entities that operate "as vehicles for public agencies," regardless of the amount of funding, if any, they receive from the public. Nw. Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 461 S.E.2d 297 (1995).

When government functions are delegated to individuals or groups, the Sunshine Law applies to their meetings. Trustees of the Travel Agency Recovery Fund, Att'y Gen. Op. No. 85-14 (July 26, 1985) (determining that trustees appointed pursuant to authority granted to an agency director by statute and who were charged by statute with managing a recovery fund are subject to Sunshine Law); Boards Created by Resolution, OIP Op. Ltr. No. 08-02 (July 28, 2008) (City Mass Transit Technical Expert Panel created by Honolulu City Council resolution was subject to Sunshine Law because the resolution creating the Panel delegated the Council’s authority to make the final selection of a fixed guideway system for rail project).

All meetings of any “standing, special, or select committee of either house of the legislature” are open to the public pursuant to a particular reference in the Open Meeting Law. See Idaho Code § 74-207. However, to the extent that a committee, board or commission which otherwise falls within the definition of a “public agency” under the Open Meeting Law does not have the authority to make decisions for or recommendations to a public agency regarding any matter, then that particular entity is not subject to the Open Meeting Law because the definition of “governing body” is expressly limited to entities with such authority. Idaho Code § 74-202(5).

Coroner’s inquests. — The Illinois Attorney General has never issued a formal opinion whether coroner’s hearings are open. However, according to Shawn Denney, First Assistant Attorney General, such hearings have traditionally been regarded as open. This is supported by a provision in 55 ILCS 5/3-3001 to -3044, which states that “[i]f a sufficient number of jurors [summoned to be on the jury] do not attend, the coroner may summon others from among the bystanders to make up the jury.” 55 ILCS 5/3-3022 (emphasis added). In Denney’s view, this supports an argument that the legislature intended that inquests be open. No cases have interpreted this provision. An informal opinion of the Illinois Attorney General, however, opined that a coroner’s jury is not a public body subject to the Act and, therefore, a coroner is not required to abide by the Act’s notice requirements. Informal Op. Att’y Gen. 007 (1998).

Whether other bodies’ meetings would be subject to the Act would depend on whether the particular body would be considered an “advisory” or “subsidiary” body of the state, or a “committee” or “subcommittee” supported in whole or in part by tax revenue. Such groups are covered by the Act’s definition of public body. See 5 ILCS 120/1.02. For example, a “public aid committee” — an entity that hears appeals from decisions denying or terminating public assistance — is a public body under the Act, according to the Illinois Attorney General. See Op. Att’y Gen. 009 (1996).

No matter what these bodies call themselves, if they exercise executive, administrative or legislative power of the state or are subject to public budget review, they would be covered by the Act. See Ind. Code § 5-14-1.5-2(a).

(1) A nonprofit corporation other than a county or district fair or agricultural society, 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 a nonprofit corporation which is a successor to the nonprofit corporation which built the facility.

(2) A nonprofit corporation licensed to conduct gambling games pursuant to chapter 99F.

But see 79 Op. Att'y Gen. 148, 153 (May 4, 1979) (Peer Review Committee of Board of Engineering Examiners is not a governmental body because there is no delegation of governmental authority).

Generally, subordinate groups, such as boards, commissions, authorities, councils, committees, subcommittees are covered by act if the parent or controlling body meets funding test under State ex rel. Murray v. Palmgren, 231 Kan. 524 (1982) and the group was appointed by a parent body to weigh options, discuss options, or present recommendations or a plan of action. "First the group of people meeting together must be a 'body or agency' within the meaning of the Act. Second, the group must have legislative or administrative powers or at least be legislative or administrative in its method of conduct. Third, the body must be part of a governmental entity at the state or local level, whether it is the governing body, or some subordinate group. Fourth, it must receive or expend public funds or be a subordinate group of a body which is so financed."  State ex rel. Murray v. Palmgren, 231 Kan. 524 (1982).

It is the nature of the group, not its designation, which determines if it is subject to KOMA. Kan. Att’y Gen. Op. 86-92; see also Kan. Att’y Gen. Ops. 86-38; 80-201; 77-53; 76-140; 76-122; 73-235.

Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663 (1986) established that certain groups are not subordinate:  "(1) those which are merely advisory and have no decision-making authority, and (2) those which are basically independent entities which have some connection, by contract or other tie to a government entity, but are not actually created by some form of government action."

In Associated Press v. Sebelius, 31 Kan. App. 2d 1107 (2003), the court found that because Kathleen Sebelius, as governor-elect, and not the government itself, created an administration transition group, it was not a state agency or subordinate to any such agency. Thus, the crucial inquiry is whether the committee has any authority to make decisions.  If it is purely advisory, it is likely not subject to KOMA.

The Attorney General has specifically found that the following subordinate groups are subject to KOMA: School District Advisory Board (Kan. Att’y Gen. Op. 84-81); Fire District Advisory Board (Kan. Att’y Gen. Op. 86-84); Mayor’s Commission (Kan. Att’y Gen. Op. 88-25); appointed grievance committees created by a city to hear employee grievances (Kan. Att’y Gen. Op. 91-31); SRS Drug Utilization Review Board (Kan. Att’y Gen. Op. 93-41); parental boards under Recreation Commission (Kan. Att’y Gen. Op. 93-73); House and Senate conference committees (Kan. Att’y Gen. Op. 93-113).  Meetings of task forces, advisory committees or subcommittees of advisory committees created pursuant to a governor’s executive order shall be open to the public. K.S.A. 75-4318(a).

Staff meetings are not covered by the law.  In 2021, the Attorney General’s Office ruled that meetings of the University of Kansas’s Pandemic Medical Advisory Team were “akin to staff meetings,” even though the university chancellor was the group’s leader and one of its members “prepared a document called ‘Decision-Making Framework for Changes to State of Campus Operation.’” Lauren Fox, Kansas attorney general says that KU’s pandemic meetings are ‘akin to staff meetings,’ do not violate open meetings act, The Lawrence Journal-World, January 12, 2021 (referencing the Attorney General’s letter).

 

 

Private bodies exercising governmental functions are covered by the Open Meetings Act. See Ky. Rev. Stat. 61.805(2)(g); Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884 (Ky. 1987).

Covered if they fall within the definition of a “public body” in La. Rev. Stat. Ann § 42:13. Seghers v. Community Advancement Inc., 357 So.2d 626 (La. App. 1st Cir. 1978) (Private nonprofit agency to which city and parish [county] governing bodies have delegated the duties of administering anti-poverty programs is covered by Open Meeting Law).  But see Property Insurance Association of Louisiana, 31 So.3d 1012 (La. 2010) (fire insurance rating association not public body, applying four-part test: whether entity was created by the Legislature; whether entity’s powers were specifically defined by Legislature; whether property of entity belongs to public and whether entity’s functions are exclusively of public character and performed solely for public benefit); M.K.L. Dev., L.L.C. v. City of New Orleans, 772 So.2d 711 (La. App. 4th Cir.), writ denied, 778 So.2d 1146 (La. 2001) (finding that private nonprofit corporation subleasing a building from the government and then sub-subleasing space within the building to tenants not performing any sort of “governmental function” described in Seghers and is not a public body). But a cooperative electric corporation that receives no public funds is not a public body under the Open Meeting Law even though it can set rates without the approval of the state Public Service Commission. Huneriager v. Dixie Electric Membership Corp., 434 So.2d 590 (La. App. 1st Cir.), writ denied, 440 So.2d 149 (La. 1983). See also La. Rev. Stat. Ann. § 17:3390(B)(l) (certain university foundations not deemed public or quasi-public corporations); Op. Att’y Gen. 00-144 (Workforce Investment Board is a public body); Op. Att’y Gen. 91-203 (LSU Tiger Athletic Foundation held to be a "private, nonprofit corporation”). Op. Att’y Gen. 96-227 (Lafayette Ass'n of Retarded Citizens is a public body because it receives public funds and administers governmental function in its anti-poverty program); Op. Att'y Gen. 94-259 (Louisiana Development Partnerships Inc., a nonprofit corporation created to implement government programs to offer low-income housing is subject to act). Any “quasi-public nonprofit corporation" organized by a governmental entity under La. Rev. Stat. Ann. § 12:202.1(D) is subject to the Open Meeting Law. La. Rev. Stat. Ann. § 12:202.1(D); Op. Att’y Gen. 93-628 (Almonaster-Michoud Industrial District Center Inc.); Op. Att’y Gen. 94-442 (Floodcomm Corporation). In addition, a committee or subdivision of a public body subject to the Open Meeting Law is itself subject to the Open Meeting Law. La. Rev. Stat. Ann. 42:4.2(A)(2). Such a subgroup may hear and review matters as authorized by its parent public body, but may not take action in matters that are the business of the parent public body. Op. Att’y Gen. 96-77.

Whether a governmental function has been formally delegated to a body and whether that body is performing a governmental function is a factor that may be considered in determining whether the entity is subject to the Act.  See 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.

Although the entity may have a public purpose (i.e., carrying out an advisory or quasi-legislative function), it is not subject to the Act unless it is a public body as defined by the Act. § 3-101(h). Thus, for example, a University of Maryland task force that was not created by a rule, resolution, or bylaw of the Board of Regents of the University, but was created as an investigatory body wholly under the province of the Chancellor was not a public body subject to the Act. A. S. Abell Publishing Co. v. Board of Regents, 68 Md. App. 500, 514 A.2d 25 (1986). Recent amendments have expanded the definition of public bodies to include any multimember board, commission, or committee, appointed by the Governor or comparable local chief executive, that includes at least two individuals not employed by the State or a local jurisdiction. § 3-101(h)(2). Additionally, any multimember boards, commissions or committees appointed by an entity in the Executive Branch of the State government, with its members appointed by the Governor, or by an official who is subject to the policy direction of such entity, is also a public body, so long as its members include at least two individuals who are not members of the appointing entity or employed by the State.  § 3-301(h)(2)(ii).

The answer will probably turn on the extent of the delegation of government functions and the method of selection of members. See Dist. Att’y for N. Dist. v. Bd. of Trustees of Leonard Morse Hosp., 389 Mass. 729, 452 N.E.2d 208 (1983); Connelly v. Sch. Comm. of Hanover, 409 Mass. 232, 565 N.E.2d 449 (1991) (school principal selection committee appointed by superintendent of schools exempt from Open Meeting Law).

Municipal town meetings are not covered under the Open Meeting Law, nor are the warrants prepared for such meetings.  G.L. c. 30A, § 18(e).

A Board of Tax Review is a local governing body empowered by statute to exercise governmental authority and a finding of the Board of Review is a "decision" within the meaning of the OMA. Because its determinations effectuate public policy, meetings of boards of review are subject to requirements of the OMA. 1977-78 Op. Att'y Gen. 377 (1978).

If a public function is delegated to (1) a state agency, board, commission or department required or permitted to transact public business in a meeting; (2) the governing body of a school district, unorganized territory, county, statutory or home rule city, town, or other public body; (3) the committees, subcommittees, boards, departments, or commissions of any public body; or (4) the governing body or commission of a statewide public pension plan or local public pension plan, then those meetings would be open to the public. Minn. Stat. § 13D.01, subd. 1. For example, the Minnesota Commissioner of Administration has held that the Drug Formulary Committee of the Minnesota Department of Human Services is subject to the Open Meeting Law.  Minn. Comm’r Admin. Op. No. 08-018 (July 23, 2008).

If the body only performs some preliminary screening function on behalf of the public body, its meetings would probably not be subject to the provisions of the Open Meeting Law. In Minnesota Daily v. University of Minnesota, 432 N.W. 2d 189 (Minn. Ct. App. 1988) an advisory committee appointed by the University Board of Regents to conduct the preliminary steps of a presidential search was deemed not to be a committee of the Board of Regents. Therefore, the meetings were not subject to the Open Meeting Law. The court based this ruling on the fact that no Regents were a part of the search committee, and the committee had no authority to make a final decision.

These are covered if they meet the test set forth in § 25-41-3(a) and are both "created by statute or executive order" and "supported wholly or in part by public funds." The Board of Trustees of State Institutions of Higher Learning is not exempt, even though it is created by constitution as well as statute. Board of Trustees v. Mississippi Publishers Corp, 478 So. 2d 273, 278 (Miss. 1985).  The Mississippi Public Service Commission is not exempt and is subject to the open-meetings law.  Att’y Gen. Op. 2009-00491 (August 27, 2009).

The definition of quasi-public governmental body includes entities that have as their primary purpose to enter into contracts with governmental bodies or engage primarily in activities carried out pursuant to a contract with a governmental body. Mo.Rev.Stat. § 610.010(4)(f)a.

Any government body that receives public funds is subject to the law. See Mont. Code Ann. § 2-3-203(1).

"Instrumentalities exercising essentially public functions" are subject to law. Neb. Rev. Stat. §84-1409(1)(a)(vi).

Other bodies performing administrative, advisory, executive, or legislative function of state or local government will be covered by the OML if they expend or disburse or are supported in whole or in part by tax revenue.

In Professional firefighters of New Hampshire v. HealthTrust, Inc., 151 N.H. 501 (2005), one of the five factors the Court relied on in ruling that HealthTrust was subject to the Statute was the fact that it performed an “essential governmental function”- health insurance to public employees through a pooled risk management program.

The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519 (2005). Lafayette Yards was a private, non-profit corporation established solely to assist the City of Trenton, the Trenton Parking Authority and the State of New Jersey to provide for the redevelopment of a 3.1 acre site in Trenton through the construction of a hotel, conference center and parking facility. The corporation operated under certain constraints consistent with the Internal Revenue Code so that it could issue tax exempt bonds because its debt would then be deemed by the IRS to have been issued on behalf of the State or a political subdivision thereof. Among the constraints was a provision that title to the corporation's property revert to the City of Trenton when the Corporation's indebtedness was retired. Similarly, the City appointed or approved of the appointment of at least 80 percent of the corporation's governing board. The Times of Trenton sought to attend meetings of the board under the Sunshine Law and sought access to the board minutes under OPRA. The New Jersey Supreme Court determined that the Corporation was subject to both statutes because it is a public body performing a governmental function within the sunshine law and was an instrumentality or agency created by a political subdivision under OPRA.

The NJ Supreme Court held that:  (1) records related to cases at public law school clinics are not subject to Open Public Records Act (OPRA); and (2) common-law right of access does not extend to records of a legal clinic at a public law school.  See Sussex Commons Associates, LLC v. Rutgers, 210 N.J. 531 (2012). 

Any commission, authority, board, council, committee or group of two or more persons which is created by statute, ordinance or regulation and collectively empowered as a voting body to perform a government function or spend public funds is subject to all the provisions of OPMA, N.J.S.A. 10:4-8(a). See Council of New Jersey State College Locals, AFT/AFL–CIO v. New Jersey State College Governing Boards Ass'n, 226 N.J. Super. 556, 558, 545 A.2d 204 (App. Div. 1988).

Probably, if the body is "cloaked with policymaking and decision making powers" by the entity of ultimate authority.  See N.M. Att'y Gen. Op. 90-27. (The Las Cruces Selection Advisory Committee was a policy body subject to the Open Meetings Act because its purpose was to narrow the list of potential contractors by reviewing qualifications and reporting to the City Council.)

School boards and educational institutions. The meetings of boards of public educational institutions are covered by the OML. See, e.g., Matter of Lucas v. Bd. of Educ. of the E. Ramapo Cent. Sch. Dist., 2017 N.Y. Misc. LEXIS 3745 (Sup. Ct. Rockland Cty. 2017) (board of education of school district); Brown v. Casier, 95 A.D.2d 574, 469 N.Y.S.2d 165 (3d Dep’t 1983) (community college board of trustees); White v. Battaglia, 79 A.D.2d 880, 434 N.Y.S.2d 537 (4th Dep’t 1980), mot. lv. appeal denied, 53 N.Y.2d 603, 421 N.E.2d 854, 439 N.Y.S.2d 1027 (1981) (school board); Binghamton Press Co. v. Board of Educ., 67 A.D.2d 797, 412 N.Y.S.2d 492 (3d Dep’t 1979) (city school board).

All bodies are covered if they meet the definition of a “public body” under G.S. § 143-318.10.

If an organization is created or recognized by state law or by an action of a political subdivision to exercise public authority or perform a governmental function, the organization is subject to the open meetings law. N.D.C.C. § 44-04-17.1(13).

In general, where a nongovernmental body acts pursuant to authority delegated by a governmental body and acts for a public purpose, the body may be subject to the sunshine statute. State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Ass'n of Greater Toledo, 61 Ohio Misc. 2d 631, 582 N.E.2d 59 (1990); see State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n, 40 Ohio St. 3d 10, 531 N.E.2d 313 (1988) (open records statute compels nonprofit corporation's board of trustees to open minutes of the board's meetings about managing a municipal hospital leased by the corporation from a city for no rent).

Where a city council delegates authority to several of its members to carry out an investigation and make recommendations, the committee is subject to Ohio Rev. Code § 121.22. Maser v. City of Canton, 62 Ohio App. 2d 174, 405 N.E.2d 731 (1978).

All boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, or any entity created by a public trust, including any committee or subcommittee composed of any of the members of a public trust or other legal entity receiving funds from the Rural Economic Action Plan Fund, task forces or study groups in the State of Oklahoma entrusted with the expenditure of public funds or administering public property are public bodies for purposes of the Act. 25 O.S. § 304.1. The Grand River Dam Authority Lakes Advisory Commission is subject to the Act. 2002 OK AG 44. 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.

The definition of “public body” in ORS 192.610 is broadly written to cover various groups, committees, and advisory groups of public bodies themselves, and the law could apply in such circumstances where the delegated body constitutes a governing body.

A committee that was not created by a vote of the Board of Trustees was not a “committee authorized by the body” and therefore the committee’s meetings were not open to the public. Lee Publ’ns, Inc. v. Dickinson Sch. of Law, 848 A.2d 178, 185 (Pa. Commw. Ct. 2004).

May be covered as an “authority” of state or municipal government. R.I. Gen. Laws § 42-46-2(3).

The test to be satisfied under the act is whether the entity if it is not a governmental body is supported in whole or in part by public funds or expends public funds. If the test is met, the entity 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).

These bodies are probably covered to the same extent. Id.

Covered by the Act. T.C.A. § 8-44-102(b) (1995). See also Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976) (involving local board of education); Metropolitan Air Research Testing Authority Inc. v. Metropolitan Gov't of Nashville, 17 TAM 31-12 (Tenn. Ct. App. July 8, 1992) (questioning what is a governing body); Op. Att'y Gen. No. 94-94, 19 TAM 39-55 (Aug. 30, 1994) (governing body may be a partisan caucus if the county legislative body gives them authority to make decisions, but not as to informal caucuses). The board of directors of a preferred provider organization that contracts with insurance companies and employers and provides contracting third-party payers with a network of physicians is considered a governmental body because the organization is a non-profit, public benefit organization which acts on behalf of and is, in essence, a division or subsidiary of the county hospital district that created it. Souders v. Health Partners Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998). A high school assembly called by a principal to address the faculty and student body is not a meeting of a government body subject to the Open Meetings Act. Op. Att'y Gen. No. 99-128 (June 18, 1999).

The board of directors of a "City Development Corporation" was subject to the Open Meetings Act because it satisfied the definition of a governing body under Dorrier by engaging in various activities related to public development and acting on behalf of the city. Op. Att'y Gen. No. 99-043 (Feb. 25, 1999). Members of the board of a rural electric cooperative operating under T.C.A. §§  65-25-201 are not subject to the Act. Op. Att'y Gen. No. 97-154 (November 10, 1997). An "Economic Development Council," a nonprofit corporation organized by a County Commission and whose members are authorized to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector, is subject to the Act. Op. Att'y Gen. No. 99-012 (January 25, 1999). Meetings of the commissioners of a county airport authority and meetings of the airport authority advisory board are subject to the Act. Op. Att'y Gen. No. 96-131 (November 14, 1996).

Boards in the executive or legislative department such as the State Text Book Committee and the Senate Subcommittee on Consumer Affairs are required to hold open meetings under the Act. See Op. Tex. Att’y Gen. No. M-136 (1967); Op. Tex. Att’y Gen. No. LA-84 (1974). In addition, the Athletic Council at the University of Texas at Austin is considered a governing body because it supervises public business. Op. Tex. Att’y Gen. No. H-438 (1974).

The Act has been applied to a county commissioners court when it is sitting as a board of equalization, Op. Tex. Att’y Gen. No. H-1000 (1977), and has been applied to breakfast meetings of the commissioners court (Op. Tex. Att’y Gen. No. H-785 (1976)). Among the bodies that have been found to be subdivisions or departments of a county or city having rulemaking or quasi-judicial authority are Boards of Firemen's Relief and Retirement Fund Trustees (Op. Tex. Att’y Gen. No. MW-174 (1980)); hospital authorities (Op. Tex. Att’y Gen. No. H-544 (1975)); higher educational authorities created under Chapter 53 of the Texas Education Code (Op. Tex. Att’y Gen. No. MW-177 (1980)); and a grievance committee organized under what is now codified in portions of the Local Government Code (Op. Tex. Att’y Gen. No. GA-0051 (2003)). In addition, there may be statutes other than the Open Meetings Act that provide for open meetings. See Enterprise Co. v. City of Beaumont, 574 S.W.2d 786 (Tex. Civ. App.-Beaumont 1978, no writ).

 

Other bodies to which government or public functions are delegated are subject to the Open Meetings Act if such bodies fall within the definition of “public body.” See Utah Code § 52-4-103(9).

The “deliberations” of any boards or agencies or commissions acting in a judicial or quasi-judicial capacity are not subject to the open meeting law. 1 V.S.A. § 312(e). Moreover, if a written decision will be issued in a quasi-judicial proceeding, that too need not be adopted at a public meeting. Id. § 312(f). In practice, however, many local boards, such as planning commissions and zoning boards of adjustment, often debate and vote on subdivision or zoning permit applications in public, and also allow public comment even though it is not statutorily mandated in quasi-judicial proceedings. Id. § 312(h).

If the parole board chooses to meet at a correctional facility, then attendance at and access to such a meeting may be subject to “security rules” established by the superintendent of the facility. 1 V.S.A. § 312(i).

"Public body" includes "any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. Va. Code Ann. § 2.2-3701 (definition of “public body”).

A task force formed by a city’s planning advisory board to analyze a particular issue, take testimony and public comments, conduct hearings, and otherwise act on behalf of the board and city council is subject to the OPMA. Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001).

Meetings of a “critical areas ordinance team,” consisting of three of six members of a county council as well as county staff and consultants, were not subject to the OPMA because the body did not contain a majority of the council and did not act on the council’s behalf. Citizens Alliance for Property Rights Legal Fund v. San Juan Cnty., 184 Wn.2d 428, 359 P.3d 753 (2015).

The public agency definition also is broad enough to cover other bodies to which governmental or public functions are delegated. As with most of these categories, any conclusion concerning the applicability of the Open Meetings Act depends upon the particular facts.

These bodies are likewise covered if they are created by official action. Wis. Stat. § 19.82(1); Outagamie Cty. v. Smith, 38 Wis. 2d 24, 155 N.W.2d 639 (1968); State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., 2017 WI 70, 376 Wis. 2d 239, 898 N.W.2d 35 (ad hoc committee of school board was subject to open meetings law).

See above.