North Dakota Attorney General’s Office
} N.D.C.C. 44-04-17.1(13), definition includes: ◦ Public or governmental bodies, boards, bureaus, commissions, or agencies of the state or political subdivision, including entities created or recognized by the Constitution, state statute, executive order of the governor, or by resolution, ordinance, rule, bylaw, or executive order of the chief executive authority of a political subdivision of the state, to exercise public authority or perform a governmental function
} N.D.C.C. 44-04-17.1(13) and (17) ◦ Also includes a “task force or working group” created by an individual in charge of a state agency N.D.C.C. 44-04-17.1(17) – group formally appointed or delegated to meet as a group to assist, advice, or act on behalf of the individual in charge of a state agency or institution when a majority of the members of the group are not employees of the agency or institution.
} N.D.C.C. 44-04-17.1(10) and (13) ◦ “Organizations or agencies supported in whole or in part by public funds, or expending public funds.” “supported” – receiving public funds exceeding the fair market value of any goods or services
} May become fully or partially subject to open records laws if: ◦ The organization is delegated authority by a governing body of a public entity; ◦ The organization is created or recognized by state law, or by an action of a political subdivision; ◦ The organization is supported in whole or in part by public funds or is expending public funds; or ◦ The organization is an agent or agency of a public entity performing a governmental function on behalf of a public entity or having possession or custody of records of the public entity.
} N.D.A.G. 2015-O-01: Circle of Friends Humane Society ◦ Non-profit corporation that provides variety of services including: caring and sheltering abused, neglected, and abandoned animals, providing education and programs to increase awareness on responsibilities to animals, and acts as city animal impound facility.
} “Supported by Public Funds Test” ◦ Not every receipt of public funds will subject an entity to open records laws – the entity has to be “supported” by the public funds. If the goods and services provided in exchange for public funds are reasonably identified in an agreement or contract and have a fair market value that is less then or equivalent to the amount of public funds it receives, then it is NOT “supported” by public funds. VERSUS Unrestricted public funds provided to the organization who then has discretion over how the funds are spent. The more discretion over the use of the funds, the more likely the funds are for the entity’s general support, and therefore considered a “public entity” subject to open records law.
Here, receives funding from: } mill levy funds from the City of Grand Forks, and ◦ public funds raised through taxation by Grand Forks County. ◦ City mill levy funds } N.D.C.C. 40-05-19 allows cities to provide funds for the purpose of constructing, ◦ operating, and maintaining animal shelters. No contracts or agreements in place – Humane Society has discretion to decide how the mill levy funds are spent within these general areas County tax appropriations } Humane Society does not competitively bid for the funds, rather, just submits requests to ◦ the County Commission for approval and the entities enter into a Service Agreement. Service Agreement generally provides that the county agrees to provide funds for the Humane Society to operate a facility for the care and shelter of stray and abandoned animals and to provide educational programs. Cannot be ascertained from reading the agreement what specific services Humane Society will provide in exchange for these funds. Funds not segregated in separate accounts to be utilized for specific services. } Rather, funds pooled with other revenue that thereafter fund the entire operation of the Humane Society. DECISION: receives public funds for the general support of the organization rather } than in a fair market value exchange for specific goods or services. Is therefore “supported” by public funds and subject to open records law.
} “Agency of Government Test” ◦ Definition of “public entity” includes “agencies” of political subdivisions of the state. ◦ Supreme Court has interpreted “agencies” to mean a relationship in which one party delegates the transaction of some lawful business to another. A non-governmental organization performing a governmental function on behalf or in place of a political subdivision is an “agency” of that subdivision. ◦ Test analyzes types of services provided and whether the organization is performing a governmental function in place of the public entity, rather than providing services to the public entity.
} State law gives authority to law enforcement officials to seize or take custody of animals believe to be neglected, abused, treated cruelly, or abandoned. ◦ Law enforcement, by law, are charged with the duty to care for the animals “either directly or through a contractual arrangement with another.” } Grand Forks County and City law enforcement use the Humane Society for such purposes. ◦ Therefore, the Humane Society was acting “in place of” the public entities to perform the governmental function of operating a shelter. } DECISION: Humane Society was acting as an “agency” of government and subject to open records law.
} Law: the application of open records law is not limited to a public entity itself; it also applies to recorded information regarding public business in the possession of an “agent” of the public entity. ◦ Supreme Court: open records law cannot be circumvented by delegating a public duty to a third party or by placing documents in the possession of the third party } City of Bismarck contracts with Bis-Man Transit to provide public transportation services. Bis-Man transit – through the contract and receipt of public funds – recognizes it is a “public entity” subject to open records law. ◦ In this contract, it authorizes Bis-Man to contract with local, private, for-profit, or non-profit transportation providers to perform the actual transit services. Bis-Man utilized this option and entered into a contract with a private company, Taxi 9000, to perform transit services and operations.
} When a private corporation enters into a contract with a public entity and performs governmental functions and public services in place of the public entity, it is an “agent” of the public entity subject to open records law. } DECISION: Bis-Man’s delegation of its public duty to Taxi 9000, and Taxi 9000 performing such functions on behalf and in place of Bis-Man, render Taxi 9000 an “agent” subject to open records law. ◦ Any records relating to the public business Taxi 9000 performs on behalf of Bis-Man, pursuant to their contractual agreement, are subject to open records law.
} Private attorney hired by Township to draft zoning ordinances ◦ Attorney in private practice is considered an “agent” of the public entity with respect to legal services provided to the public entity. for a township was considered an “agent” ◦ Client files held by an attorney belong to the client rather than the attorney. The legal files of a municipality belong to the municipality as the client rather than the city attorney. ◦ Records in the possession of the “agents” received or prepared in connection with public business or contain information relating to public business, are subject to open records law.
} N.D.A.G. 2015-O-05: N.D. Council of Educational Leaders ◦ Non-profit association for superintendents, principals, and other school administrators. Purpose and interests laid out in Constitution and By-Laws. ◦ NDCEL: Not created by state law or action of political subdivision; No public entities have any jurisdiction, regulation, or control over the NDCEL; Not been delegated any authority by a governing body of a public entity; No contract with a public entity to perform a governmental function on public entity’s behalf. ◦ FOCUS therefore on whether “supported” or “expending” public funds.
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