Tennessee Supreme Court: Public University Faculty Non-Profit Corporation Is Not An "Agency" Under Public Records Act
A group of internists at the University of Tennessee College of Medicine (UTCOM) organized as a tax-exempt, non-profit corporation, identified as the Internal Medicine Educational Foundation (IMEF). The purpose of IMEF is to "provide educational programs, research and support services for the internal medicine residency program" at UTCOM. When the IMEF refused plaintiff's request for records, plaintiff sued under the Tennessee Public Records Act. Like Washington State, Tennessee applies its PRA to those agencies described by the law and to entities that are the "functional equivalent of a government agency." Functional equivalency is determined by certain factors:
(1) whether the entity performs a governmental function;
(2) the extent of government funding;
(3) the extent of government control over the entity; and
(4) whether the entity was created by legislative act.
Those factors are then applied under a "totality of the circumstances" test to determine if the entity is the functional equivalent of an agency. Applying the factors, the Tennessee Supreme Court on February 28, 2011 found that IMEF was not the functional equivalent of an agency. As a result, IMEF was not subject to that state's PRA.
Washington's Public Records Act, at Chapter 42.56 RCW, similarly may be applied to an entity when found to be the functional equivalent of an agency. See Telford v. Thurston County Board of Commissioners, 95 Wash.App. 149, 974 P.2d 886 (1999). In Telford, the Court of Appeals held that while the Washington State Association of Counties (WSAC) and the Washington Association of County Officials (WACO) were not agencies as such, they were the “functional equivalent” of agencies and therefore subject to the campaign finance provisions of the Washington Public Disclosure Act. The court in Telford did not address the separate provisions of the Public Disclosure Act relating to public records (now, the Washington Public Records Act). And, the decision did not address other entities similar to WSAC and WACO.
In 2002, the Washington Attorney General issued a formal opinion in response to an inquiry regarding the Association of Washington Cities (AWC) and other organizations. See AGO 2002 No. 2 (April 10, 2002). In that formal Opinion, the Attorney General examined whether entities whose membership includes public agencies were separately subject to the Public Records Act. The opinion examined the Telford analysis (factors similar to those applied by the Tennessee Court), but concluded that any application of the statute to “AWC in a public records context must await the development of an actual factual situation to which the principles set forth in the statute, as interpreted in Telford, might be applied.”
Subsequent Washington cases have reached divergent results, based primarily on the extent of an entity's government funding and governmental authority. For example, in Spokane Research & Defense Fund v. West Central Community Dev. Ass’n, 133 Wn. App. 602 (2006), the court found that a contract vendor in a city park was not the functional equivalent of a public agency. But, in Clarke v. Tri-Cities Animal Care and Control Shelter, 144 Wn. App. 185 (2008), the court found a non-profit entity providing enforcement of animal control laws under contract with city and county governments was the functional equivalent of an agency.