At issue in the case was the reach of one of New Mexico's main governmental sunshine laws, the Inspection of Public Records Act.The case is from the Appeals Court of the State of New Mexico and involves a contractor service provider for the New Mexico town (well, it was a town when I passed through there back in the mid-60's) of Truth or Consequences (named after a popular TV show of that era). The case is reported here, and I cut and paste and remove the relevant context from it, so you'd benefit from a read of the case in full at the link.
The court issued the decision last week in a case involving the city of Truth or Consequences and a nonprofit corporation that operated a public access cable channel for the community.
Video recordings of city commission meetings, which were made by the contractor to show on the cable system, are subject to disclosure under state law, the court said in reversing a district judge in Sierra County who had decided the recordings were not public records. The court said the cable system contractor was the "functional equivalent of a public agency in this case."
the City entered into a contract (operating agreement) with SCC, designating it the “cable access management organization” for the PEG channel. The City agreed to provide funding to SCC to support the PEG channel through the dedicated portion of the franchise fees as well as equipment and, if available, physical space. In exchange, SCC agreed to operate the channel for “public/community access programming purposes” and further agreed to produce any programming the City required for a public purpose at no cost to the City. The operating agreement identified SCC as an independent contractor and stated that no principal/agent or employer/employee relationship existed between SCC and the City.
The district court found that SCC was an independent contractor, not an agent of the City. The district court further found that, at the time of the request, one meeting was still on SCC’s computer; however, it concluded that nothing in the operating agreement required SCC to create, maintain, or hold recordings of City meetings on behalf of the City. Therefore, the district court ruled that “[n]o public record was created by virtue of Hopkins recording City meetings and SCC cablecasting those meetings.”
the dispositive question is whether SCC’s recordings of the City meetings were made on behalf of the City so as to constitute public records within the meaning of IPRA.
IPRA defines “public records” as all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or
characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.
Florida appellate courts have repeatedly held that documents in the control of a government contractor are public records subject to inspection. Importantly, Florida’s public records law, like New Mexico’s, states that every person has the right to inspect or copy any public record including those records “made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf[.]” The Florida Public Records Act defines “public records” as including any document or sound recording made or received “by any agency.” The Florida legislature further defined “[a]gency” to include not only governmental units, but any “business entity acting on behalf of any public agency.”
The seminal Florida case addressing when a private entity will be subject to its
state public records law is News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser
Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). There, the Florida Supreme Court listed nine factors that can be used to determine whether a private corporation is “acting on behalf of any public agency” under the public records law.
Those factors include:1) the level of public funding;Applying this totality of factors test, the court held that an architectural company was not “acting on behalf of any public agency” when it was hired by the county to perform professional architectural services for the construction of a school (noting that because the firm was not created by the school board, public funds were only given for services rendered, the school board did not control the firm or delegate any of its decision-making process to the firm, and the school board did not perform a government function, the totality of factors test was not met).
2) commingling of funds;
3) whether the activity was conducted on publicly owned property;
4) whether the services contracted for are an integral part of the public agency’s chosen decision-making process;
5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform;
6) the extent of the public agency’s involvement with, regulation of, or control over the private entity;
7) whether the private entity was created by the public agency;
8) whether the public agency has a substantial financial interest in the private entity; and
9) for who[se] benefit the private entity is functioning.
Nevertheless, the Florida Supreme Court stressed that it was taking a flexible and
cautious approach by using a broad definition of “agency” that would ensure that a
public agency could not avoid disclosure under Florida law by contractually
delegating its responsibility to a private entity.
Since Schwab, Florida courts have continued to find that if a private entity is
doing more than just providing a specific contracted-for service to the public agency, the private entity is likely to be subject to its access law.
At least four other states have adopted approaches analogous to the totality of
factors approach of Florida. The Connecticut Supreme Court in Connecticut Humane Society v. Freedom of Information Commission, 591 A.2d 395, 396-97 (Conn. 1991), explained that in order for a private entity to be subject to the state Freedom of Information Act, it must be the “functional equivalent of a public agency.”
In A.S. Abell Publishing Co. v. Mezzanote, 464 A.2d 1068 (Md. 1983), the Maryland Court of Appeals held that an insurance guaranty association was an “agency or instrumentality” under the Maryland Public Information Act.
Similarly, the North Carolina Court of Appeals has held that a non-profit county
hospital system must release terms of legal settlements because of the county
commission’s control, review, and regulation; public funding; operation on leased
property; and operation pursuant to county agreement and bonds. News & Observer Publ’g Co. v. Wake Cnty. Hosp. Sys., Inc., 284 S.E.2d 542, 544-45, 549 (N.C. Ct. App. 1981).
Finally, the Oregon Supreme Court in Marks v. McKenzie High School FactFinding Team, 878 P.2d 417, 419 (Or. 1994), adopted a totality of factors approach when it denied parents access to the records of a fact-finding team appointed by the school district to investigate problems at the local high school. Because the team was independent of the government and not able to make decisions, the court held that the factors weighed against finding it subject to the inspection of public records law.
We are persuaded by the application of a totality of factors approach adopted
by the courts in Florida and the other states listed above. Further, although no New
Mexico case has used the totality of factors test to determine when a private entity
should be subject to IPRA’s provisions, we find support for utilizing this procedure
in our cases that have considered when a private entity performs a public function
such that it must comply with statutes generally governing only government agencies.
We emphasize, however, that IPRA should be construed broadly to effectuate its purposes, and courts should avoid narrow definitions that would defeat the intent of the Legislature. See Cox, 2010-NMCA-096, ¶ 5 (noting that access to information concerning the affairs of the government is a fundamental and necessary right of every person in this state).
Applying the totality of factors test, we conclude that SCC was acting “on behalf of” the City in this case. All of SCC’s funding comes from the City; SCC’s operation and activity is conducted on publicly owned property, albeit for a nominal fee; the services provided by SCC are an integral part of the City’s decision under the Ordinance to operate a PEG channel; the City is intimately involved in the regulation and procedures for access channel use and has control over SCC to the extent that it can unilaterally cancel the contract; and SCC is operating for the sole benefit of the City. Consequently, once SCC relieved the City of its function to operate the PEG channel and because it uses public equipment and funds to perform that function, the SCC acts “on behalf of” the City and becomes subject to IPRA.
Today, traditional public functions such as fire protection, transportation, jails, afterschool programs, and health care are routinely delegated to private entities — or privatized — for a variety of reasons. To allow such entities to circumvent a Citizen’s right of access to records by contracting as the City and NMML suggest would thwart the very purpose of IPRA and mark a significant departure from New Mexico’s presumption of openness at the heart of our access law. See Rio Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-___, ¶ 9, ___ P.3d ___ (No. 30,698, Apr. 26, 2012) (stating that “IPRA embodies New Mexico’s policy of open government”. We therefore continue to utilize a flexible approach that favors access to records even when held by a private entity.
Although the court repeatedly spelled out the language of the IPRA, indicating it may be specific to local law, it also relied on a common law type test based on the totality of the circumstances, coupled with a policy of law to promote transparency, so it may be that your particular jurisdiction may be persuaded by the rationale even if your local statute varies from the code law of New Mexico.
Guam has a Sunshine Act that applies to "public records", which "includes ... any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency in any format, including an electronic format."
It does not apply to entities other than government "agencies", and as currently used on Guam, it would be difficult to make the case that a private contracted service provider is an "agency", even if performing governmental function services as an agent. 5 GCA § 10102(a): "Agency means any authority of the government and includes a department, institution, board, bureau, commission, council, committee of Guam government, branch, autonomous instrumentality, public corporation funded by public taxes or funds, or other public entity of the government of Guam, whether or not it is within or subject to review by another agency."
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