[This is taken from our newsletter, Open Doors. You can learn more and subscribe here: https://icog.substack.com]

✏️ Pro-Tips for Sharpening Your Requests

ICOG highlights interesting Public Access Counselor opinions and other tips provided by the open government community.

*Lessons from PAC Advisory Opinion 22-FC-91: If a private entity is exercising any part of the executive, administrative, judicial, or legislative power of the state and you were denied information because they were merely private, make sure you contact the Public Access Counselor’s office and file a complaint.

To get records now, another strategy would be to investigate to see if any of the records that the private entity creates make their way back to the public agency. If so, requesting from this agency or department may help speed up the records release process.

And remember, just because a public agency denies your request, doesn’t mean that are fulfilling their duties under APRA.

[*This edition has been updated for clarity.]

22-FC-91: Alleged Violation of the Access to Public Records Act by St. Joseph County

The recent 22-FC-91 opinion follows a common exemption public agencies like to share (related philosophically to IndyStar’s lawsuit against the eight hospitals in Indiana covered above): if a private entity is doing the public’s work, the records related to the same are not covered under APRA.

Thankfully, it isn’t as simple as that. Read on to learn how Public Access Counselor Luke Britt works through the complaint against St. Joseph County:

On May 23, 2022, the County denied [Andy] Rutten’s request. The County asserted the Humane Society of St. Joseph County (Humane Society) was not a public agency for purposes of APRA under Indiana Code section 5-14-3-2.1. The County contracts with the Humane Society, a nonprofit corporation, to provide services under the local animal control ordinance.2 The County argues that the Humane Society is a private entity; and thus, APRA does not apply to the organization’s records

Rutten was quick to file a complaint with the PAC’s office, arguing that, for all intents and purposes, the Humane Society is fulfilling the role of government in St. Joseph County since the County delegated authority to the organization:

On May 25, 2022, Rutten filed a formal complaint with this office. Rutten argues that because the Humane Society is delegated authority to enforce the animal control ordinance, APRA applies in this case. Rutten asserts that the Humane Society—by contract and ordinance—issues county permits and licenses, inspects and investigates reports and complaints, captures animals, and collects fees and fines.

And, as one might expect, the County doubled down on their exemption assertion and public records denial:

On June 6, 2022, St. Joseph County filed an answer to Rutten’s complaint. The County reiterates that the Humane Society is a nonprofit corporation; and thus, is not part of county government. Additionally, the County argues the Humane Society is excluded from APRA in accordance with Indiana Code section 5-14-3-2.1 because the organization is a provider of goods, services, or other benefits.

Britt offered his standard language on who is subject to APRA and that agencies must exercise mandatory exemptions and have the discretion of exercising voluntary ones. He goes on to explain (emphasis ours):

Under APRA, public agency means: Any board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the executive, administrative, judicial, or legislative power of the state.

Ind. Code § 5-14-3-2(q)(1). Historically, this office has applied this statute as a functional equivalency test (i.e., is the private actor performing the functional equivalent of a public agency). Undoubtedly, the Humane Society of St. Joseph County, all else being equal, is a private entity organized as a domestic nonprofit corporation in Mishawaka, Indiana.

When a private entity, however, is delegated a governmental power, its functions related to those powers become subject to oversight and accountability vis-à-vis the Access to Public Records Act.

Britt then cites the specific ordinance that the Humane Society enforces and shares that they also receive an appropriation in the County budget (emphasis ours):

The Humane Society has an appropriation in the County budget to perform these services and holds itself out on its paperwork to be an instrumentality of St. Joseph County.

Enforcement of ordinances is unquestionably a government function. This is especially so when there are fees and fines involved, numerous examples of which are scattered throughout Ordinance No. 33-17. A private entity is deemed a state actor when the state delegates a traditionally public function to the entity itself. Wade v. Byles, 83 F.3d 902, 905 (7th Cir.1996)

Britt continues by sharing a similar case from 1991 involving the Indianapolis Convention & Visitors Association, Inc. and Indianapolis Newspapers, Inc.

In that case, the Indiana Supreme Court rejected the ICVA’s argument that it was merely a provider of goods and services because it contracted with the Capital Improvement Board of Marion County.

In part, the court reasoned that private, contracted entities are considered providers of goods and services when “measured goods or services [are] given in exchange for payment based on identifiable quantities of goods or services.” Id. at 214.

Here, there is an actual appropriation in the St. Joseph County budget outsourcing the enforcement of a local ordinance to a private third party. It does not appear any agreement provides for the payment or negotiation of fees to the entity in exchange for goods, services, or other benefits, which are critical elements of Indiana Code section 5-14-3-2.1.

Enforcement of local ordinances is different than, say, the paving contract for the courthouse parking lot or the maintenance agreement for the copiers in the recorder’s office. There is little comparison between a provider of goods and services and the outsourcing of a government regulatory function.

Notably, it bears mentioning that the entirety of the Humane Society’s records are not necessarily public under APRA. Documents that are not part of the County’s government functions would not be subject to APRA. Adoption records of animals, for example, are not a government function. Only those records relating the exercise of government authority (i.e., those actions enumerated in the local
ordinance) are subject to disclosure.

Britt concludes:

Based on the foregoing, it is the opinion of this office that the Humane Society of St. Joseph County is a public agency when performing the functions associated with a local regulatory ordinance. Therefore, its records germane to those functions are disclosable public records as if it were an intercounty agency.