From the Reporters Committee for Freedom of the Press:
Private and Quasi-Private Entities: Private entities are generally not subject to federal FOIA. A quasi-private entity is one that, while private, conducts government business. For example, in 2000, the Colorado Court of Appeals determined that a nonprofit corporation was subject to the state open records law in Denver Post Corp. v. Stapleton Development Corp. The company, while private, had been created by the city of Denver and tasked by to redevelop a former airport through the Denver Urban Renewal Authority. The court held the private corporation was subject to the state open records act because the project was of a public nature, on publicly owned land and because the city had significant control over the project and the corporation.”
“A federal court may also find private or quasi-private activities subject to FOIA if it is determined that the government retains custody and control of the records. No matter how much federal money an entity receives, the U.S. Supreme Court held in Forsham v. Harris that to determine whether an entity’s records are public is a question of control. It is not clear, however, how much control over an outside entity is needed to satisfy that test, as the Court in Forsham determined that a mere right to possess and control the records is not enough to subject the entity to FOIA. Records must “have been, in fact, obtained,” according to the Court.
States often follow similar rules as the federal government, but many tend to follow a “functional equivalent†test to determine if the records of private or quasi-private entity should be disclosable. That test involves determining whether the entity has become essentially a branch of the government either through financial support or whether the entity performs a task that is traditionally one conducted by government.
In Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., a private company was found subject to the Florida open records act after the West Volusia Hospital Authority transferred to it its duties to operate and maintain local hospitals. “[I]n performing pursuant to the Agreement transferring the authorized function, West Volusia, Inc. was ‘acting on behalf of’ the Authority.”‘ When “acting on the behalf of” an agency, the Florida Supreme Court held that private entities are subject to the state open records act.
States use differing language and look to different factors, but the Florida case is relatively typical. West Volusia, Inc. was receiving benefits normally reserved for the government — it was able to exercise the government’s right to eminent domain and received tax money to fund its operations. In addition, the company was performing a function that had been previously tasked to a government authority. These factors added up, in the eyes of the court, to the company “acting on behalf of” the government and, therefore, subject to the open records law.
The USI Chamber Choir and Women’s Choir will perform a Spring Concert at 3 p.m. Sunday, April 29, at Trinity United Methodist Church, located at 216 S.E. Third Street in downtown Evansville.