Partially funded public TV stations exempt from records law

Sep. 23, 2004 — Public television stations that receive less than two-thirds of their funding from the government are exempt from Virginia’s open records law, a state court has ruled.

David D. Wigand sued Norfolk, Va.-based public television station WHRO after it refused to disclose the names and salaries of station employees earning more than $10,000 annually. Wigand argued the information was public under the state open records law.

Virginia’s open records law defines a public body to be "any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth . . . ; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds." The plaintiff claimed that WHRO’s receipt of public money required the station to release employee information.

In order to be considered a government entity under the state law, WHRO would have to receive at least two-thirds of its funding from public sources, the court ruled. While WHRO was initially fully funded by public money, that is no longer true. In 2002 only 26 percent of WHRO’s funding came from public sources; in 2003 it was 24 percent.

The court also ruled that WHRO does not have to open its employee salary records because public and corporate funds are kept in separate bank accounts and the station does not perform any governmental functions.

While WHRO fought to keep its information private, a public access station in Hawaii is fighting to keep from being declared a government agency subject to state open meetings and open records law. Olelo, the station, wants to remain free of bureaucratic control over its programming it believes would occur if it were declared a government agency. The station has asked a Hawaiian court to declare it "not owned, operated or managed" by the state and therefore exempt from the state open meetings and records law.

The request stems from inquiries made by the Hawaii Office of Information Practices to reveal client information. If Olelo loses the case, other public-access television channels would be unable to guard client information.

OIP did not recognize Olelo as a government entity until 2002, and raised no objection to Olelo filing its taxes as a 501(c)3 public charity. The state now says the television station is a government agency because its funding is regulated by the state Department of Commerce and Consumer Affairs. Hawaii law requires cable companies to subsidize public-access television and the department administers that process.

(Wigand v. WHRO; Media Counsel: Brett Spain, Wilcox & Savage, Norfolk, Va.) — EF

© 2004 The Reporters Committee for Freedom of the Press

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