Public access laws in your state

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Here's what state public records and open meetings laws say about access to nongovernmental bodies. These short descriptions are taken from the 2006 edition of the Open Goverment Guide, the Reporters Committee's guide to navigating public access laws. Each entry is prepared by open government experts in that state; to see their names, click the "See full OGG entry" link at the end of each state's entry.

Oklahoma
Bodies receiving public funds or benefits: Any entity "supported in whole or in part by public funds" is subject to the act. 51 Okla. Stat. Supp. 2005 § 24A.3.

Bodies whose members include governmental officials: 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 Okla. Stat. Supp. 2005 § 24A.3. See full OGG entry for Oklahoma

Oregon
Bodies receiving public funds or benefits: That a body receives public funds or benefits does not alone mean it is subject to the Public Records Law. In Marks v. McKenzie High School Fact Finding Team, 319 Or 451, 878 P.2d 417 (1994), however, the state court created a six-part test: (1) Was the entity created by government? (2) Is the function of the entity one traditionally performed by government or privately? (3) Can the entity bind government with its decisions or does it only make recommendations? (4) What is the nature and level of governmental financial and nonfinancial support? (5) What is the scope of governmental control over the entity's activities and operations? and (6) Are the entity's officers or staff public employees?

In the McKenzie High case, the Court found that a school fact-finding team, asked to investigate a high school's performance, was not a public body and therefore not subject to the Public Records Law.

Bodies whose members include governmental officials: That any body includes governmental officials among its members does not bring it within the scope of the Public Records Law. Governmental control and support are factors under Marks v. McKenzie High School, supra. See full OGG entry for Oregon

Pennsylvania
Bodies receiving public funds or benefits: This will depend on whether the body performs an essential government function. That will be the case "only where (1) the statute identifies the organization as providing essential services, or (2) the organization provides constitutionally mandated services or services indisputably necessary to the continued existence of the Commonwealth." Safety, Agriculture, Villages and Environment (S.A.V.E.) v. Delaware Valley Regional Planning Commission, 819 A.2d 1235 (Pa. Cmwlth. 2003) (citing Community College of Philadelphia v. Brown, 674 A.2d 670 (Pa. 1996)).

Of course, if the legislature says that a particular body is an agency under the Act, then the body must comply with the Act's requirements. Cf. Harristown Dev. Corp. v. Commonwealth, 614 A.2d 1128 (Pa. 1992) (A private non-profit corporation that leases land, offices or accommodations to a Commonwealth agency for a rental amount in excess of $1.5 million per year was held to be an agency because the statute creating the non-profit corporation specifically stated that it was deemed an agency under the Sunshine Act) (interpreting 71 Pa. Cons. Stat. § 632(d)).

Bodies whose members include governmental officials: The presence of 12 state-appointed trustees on a 36-member university board did not transform an essentially private university into a state "agency" under the Right to Know Act. Mooney v. Board of Trustees of Temple Univ, 292 A.2d 395, 399 (Pa. 1972). See full OGG entry for Pennsylvania

Rhode Island
Bodies receiving public funds or benefits: Not expressly included, but likely falls within the scope of the APRA as constituting a public or private agency, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency. R.I. Gen. Laws § 38-2-2(1) (1999).

Bodies whose members include governmental officials: Not expressly included, but likely falls within the scope of the APRA as constituting a public or private agency, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency. R.I. Gen. Laws § 38-2-2(1) (1999). See full OGG entry for Rhode Island

South Carolina
Bodies receiving public funds or benefits: A body supported in whole or in part by public funds or one that expends public funds is subject to the act. S.C. Code Ann. § 30-4-20(a); Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991). A business does not become subject to the act by the receipt of public funds if the public funds are given in exchange for identifiable goods or services. Id.

Bodies whose members include governmental officials: A nongovernmental group would not become subject to the act merely because its members include governmental officials unless the group received public funds "en masse." Weston v. Carolina Research and Development Found., 401 S.E.2d 161 (S.C. 1991). See full OGG entry for South Carolina

South Dakota
Bodies receiving public funds or benefits: Nongovernmental bodies receiving public funds or benefits are probably not within the definitional scope of "officer or public servant."

Bodies whose members include governmental officials: These groups are probably not covered. See full OGG entry for South Dakota

Tennessee
Bodies receiving public funds or benefits: Tennessee courts have construed the Act to cover the records of nongovernmental bodies in receipt of public funds and of advisory boards of quasi-governmental bodies. In Memphis Publishing v. Cherokee Children & Family Services, 87 S.W.2d 3d 67 (Tenn. 2002) the Tennessee Supreme Court held that a "functional equivalency test" should be used to determine if the Act would apply to a private company retained by a government agency to perform governmental services. Whether a private entity operates as the functional equivalent of a government entity, so as to render its records subject to the Act, will be judged in light of the totality of the circumstances. Factors relevant to this analysis are: 1) level of government funding, 2) extent of government involvement or control, and 3) whether the entity was created by the government. With this ruling, previous decisions of the Tennessee Court of Appeals on this issue may no longer be reliable authority.

Tenant subleases of city-owned property are open records. Creative Restaurants Inc. v. Memphis, 795 S.W.2d 672 (Tenn. Ct. App. 1990) (tenant subleases of city-owned property in the possession of private, for-profit corporations that served as the city's leasing agent are public records under the Act). But see Webber v. Bolling, C.A. No. 177 (Tenn. Ct. App. December 13, 1989) (working papers of certified public accountants retained by Anderson County to conduct an audit of a department of the county government were not subject to disclosure under the Act). The payroll records of a public hospital have been held to be open under the Act. Cleveland Newspapers Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981), cert. denied, (Tenn. 1981) (holding that only the legislature can designate records confidential and that a hospital created by the state legislature and financed with public funds is an arm of the state carrying on a governmental function). However, employee personnel records of a hospital operated by a not-for-profit corporation under a 50-year lease agreement with Shelby County are not subject to the Act. Memphis Publ'g Co. v. Health Care Corp., 799 S.W.2d 225 (Tenn. Ct. App. 1990) (reasoning that hospital that was not created by the general assembly and never claimed governmental immunity from tort actions was a private rather than governmental entity).

Bodies whose members include governmental officials: Presumably not subject to the Act. See full OGG entry for Tennessee

Texas
Bodies receiving public funds or benefits: Section 552.001(a) of the Act, which sets out the Act's purpose, specifically mandates that it "shall be liberally construed to implement [the Act's] policy." The Act "shall be liberally construed in favor of granting a request for information." § 552.001(b). In that spirit, courts and the Texas Attorney General have interpreted the term "governmental body" broadly, to include:

However, the Waco Court of Appeals found that the Brazos Higher Education Authority Inc., a nonprofit corporation that issues revenue bonds to purchase student loans, is not a governmental body under the Act. Blankenship v. Brazos Higher Educ. Auth., 975 S.W.2d 353, 360 (Tex. App.-Waco 1998, pet. denied). Individual members of a school district board of trustees are not a governmental body. Nor is the National Collegiate Athletic Association, even though it received public funds from public university members. Kneeland v. National Collegiate Athletic Ass'n, 850 F.2d 224, 230-31(5th Cir. 1988). See full OGG entry for Texas

Utah
Bodies receiving public funds or benefits: GRAMA does not expressly apply to nongovernmental bodies receiving public funds or benefits. However, certain records created and maintained by private entities that enter into contracts with governmental entities may be available for public inspection under GRAMA. For instance, the following records normally are public: documentation of the compensation that a governmental entity pays to a contractor or private provider, Utah Code Ann. § 63-2-301(1)(j) (2004); records documenting a contractor's or private provider's compliance with the terms of a contract with a governmental entity, id. § 63-2-301(2)(b); records documenting the services provided by a contractor or a private provider to the extent the records would be public if prepared by the governmental entity, id. § 63-2-301(2)(c); and contracts entered into by a governmental entity, id. § 63-2-301(2)(d).

Bodies whose members include governmental officials: GRAMA does not expressly apply to nongovernmental groups whose members include government officials. See full OGG entry for Utah

Vermont
Nongovernmental bodies: The Attorney General stated early on that the state college board is subject to the open meetings law. 1962-64 Op. Atty. Gen. 427. However, the legislature amended the open records law in 1996 to exempt "information developed, discovered, collected or received 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." 1 V.S.A. § 317(b)(23), see ¶ II(A)(2)(23), infra. By enacting this amendment, the legislature partially overruled Animal Legal Defense Fund Inc. v. University of Vermont, 159 Vt. 133, 616 A.2d 224 (1992), and Sprague v. University of Vermont, 661 F. Supp. 1132 (D. Vt. 1987), in which both the Vermont Supreme Court and the United States District Court for the District of Vermont had held that the University of Vermont was subject to the open records law in connection with animal-testing research.See full OGG entry for Vermont

Virginia
Bodies receiving public funds or benefits: Non-governmental organizations, corporations and agencies that are not supported principally by public funds are not "public bodies" under the Act, and, thus are not subject to its disclosure requirements. 1995 Va. Op. Atty Gen. 4 (January 9, 1995)(The General Assembly did not intend for the Act to apply to a private corporation receiving public funds to pay for property, goods, or services it provides, when that corporation is not supported wholly or principally by public funds.)

Bodies whose members include governmental officials:The presence of a government official on the governing body of an entity does not make the entity a public body. The body must meet the statutory definition, or be performing a delegated function of a public body as discussed below. See full OGG entry for Virginia

Washington
Bodies receiving public funds or benefits: Such bodies are presently not mentioned in the Act, although there have been attempts to enact legislation to cover them as well.

Bodies whose members include governmental officials: Such groups are not presently covered by the language of the Act. See full OGG entry for Washington

West Virginia
Bodies receiving public funds or benefits: The Freedom of Information Act applies to "any other body . . . which is primarily funded by [a] state or local authority." In 4-H Road Community Association v. W. Va. University Foundation, 182 W. Va. 434, 388 S.E.2d 308 (1989), the Supreme Court ruled that receipt by the WVU Foundation of private contributions intended to support the state university, and the Foundation's use of state property for a nominal fee under an arrangement primarily benefiting the University rather than the Foundation, were not sufficient to make the Foundation a body "primarily funded" by governmental authority. While there has been significant criticism of that decision by the media and members of the bar, there has been no change in the statute or the law interpreting it. Such bodies remain outside the purview of the FOIA act. Cf., Queen v. W. Va. University Hospitals, 179 W. Va. 95, 365 S.E.2d 375 (1987).

Bodies whose members include governmental officials: The FOIA does not specifically apply to nongovernmental bodies whose members include governmental officials, unless the body "is created by state or local authority or . . . is primarily funded by the state or local authority." W. Va. Code § 29B-1-2(3).

In Queen v. W. Va. University Hospitals, 179 W. Va. 95, 365 S.E.2d 375 (1987), the state Supreme Court ruled the FOIA applies to the WVU Hospitals corporation (WVUH) because, even though it was a "private" corporation "established under the general corporate provisions of West Virginia law," the corporation was created to take over and operate the university's medical center, and the corporation's exclusive function was made possible by an enabling statute which "laid out very specific requirements that the corporation had to meet. . . . Unlike the normal corporate entity, the statute was the sine qua non leading to the incorporation of WVUH and that body was, therefore, created by state authority." Id. at 386-87. The primary factors leading to the court's decision were that the new corporation "has statutorily specified purposes and directors, primarily public officers, who have fiduciary duties to the people of the state." Id. at 379. The court accordingly held, because of the provisions in the statute creating WVUH "mandating openness and accountability in the management of the corporation and because of the statutory requirement that we liberally construe the disclosure provisions of the West Virginia Freedom of Information Act," the corporation is covered by the FOIA and its records are subject to disclosure. Id. at 377.

In contrast, the court has held that the WVU Foundation is not a public body. 4-H Road Community Association v. W. Va. University Foundation, 182 W. Va. 434, 388 S.E.2d 308 (1989). In ruling that the hospital corporation, but not the foundation, was "created by state authority," the court delineated the important differences in the nature of the two corporations:

4-H Road Community Association v. W. Va. University Foundation, 388 S.E.2d at 311 (citations omitted). See full OGG entry for West Virginia

Wisconsin
Bodies receiving public funds or benefits: A nonprofit legal aid society providing guardian ad litem services and receiving more than 50 percent of its funds from a county is subject to the Open Records law. Cavey v. Walrath, 229 N.W.2d 105, 106, 598 N.W.2d 240, 242 (Ct. App. 1999). Nongovernmental records produced and collected under a governmental contract are covered. Wis. Stat. § 19.36(3); Journal/Sentinel Inc. v. Sch. Bd. of Shorewood, 186 Wis. 2d 443, 453, 521 N.W.2d 165, 170 (Ct. App. 1994). But see Machotka v. Village of West Salem, 233 Wis. 2d 106, 112, 607 N.W.2d 319, 322 (Ct. App. 2000) (upholding denial of access to municipal bond underwriter's records identifying purchasers of bonds) ("Here, however, Baird did not contract to perform any duty for the Village other than to underwrite the bond issue. And its only obligation under that agreement was to purchase the bonds. Anything beyond that--such as Baird's eventual sale of the bonds to others--was undertaken for Baird's own purposes and its own benefit, not the Village's.")

Bodies whose members include governmental officials:Nongovernmental groups' records are not covered per se, but their records in the hands of a governmental official who has those records ex officio are included. See full OGG entry for Wisconsin

Wyoming
Nongovernmental bodies: Records of nongovernmental bodies are not "public records." Wyo. Stat. § 16-4-201(a)(v) (1977, Rev. 1982); § 9-2-405 (1977, Rev. 1987). The Wyoming Supreme Court has yet to be faced with a case that involves the issue of access to records of a private entity performing a government function. See full OGG entry for Wyoming

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