By: Clark, Campbell, Lancaster & Munson, P.A.

Q: When can private entities working in concert with the government be subject to public records requests?

A: A Florida appellate court recently reversed a trial court’s ruling that the Space Coast’s Economic Development Commission is subject to public records laws. Florida has made great strides to bring the government “into the sunshine” with rules that sweep even certain casual encounters between government officials into the “open meetings” category and pull certain semi-private entities into public scrutiny. The Attorney General’s Office has spoken as to economic “councils” being within the purview of public records laws when they serve, as they generally do, an advisory role to the government.

It therefore surprised some when the appellate court reopened the question as to whether an economic development commission must respond to public records requests. The real reason for reversal was that the trial court applied the wrong test. The trial court used a “delegation of functions” test to determine that economic development activities having been delegated to the commission made it as though the commission was stepping into the shoes of the government. Where there is clear and complete delegation of function, the court said, the private agency is subject to public records laws. The appellate court did not reject that test but said that the test was misapplied, because the commission was left without some economic development functions, such as job training, and could not make binding decisions on tax incentives and abatements.

Absent complete delegation of function, the appellate court held that a “totality of factors” test applied. Factors include public funding (in this case, about half of the entity’s budget), commingling of public and private funds, conducting of business on public property, whether the services are integral to governmental decision-making, performance of a function the government would otherwise perform, extent of governmental control over the entity, creation of the entity by the government, substantial financial interest in the entity by the government, and operation of the entity for the public’s or government’s benefit. Undoubtedly, some of these factors appear to weigh in favor of treating an economic development commission as public enough to respond to public records requests. But the fact that the commission at issue received substantial investor funding, sat dozens of investors and few governmental appointees on its board and committees, and lacked final decision-making power for much of its advisory role made the appellate court question whether the public records laws applied. Absent a rehearing or another appeal, the trial court will now have to apply the totality of factors test to determine whether the commission is public enough.

When a quasi-public entity refuses your requests for public records, it is important to conduct an investigation, often with the assistance of an attorney, as to whether there is a good argument that the refusal is unwarranted, in which case you could have remedies to pursue in court.

The December 3^rd edition of “The Law” will cover end of year tax tips.

Questions can be submitted online to thelaw@clarkcampbell-law.com.