An “agency” is defined fairly clearly by Section 119.011(2), Florida Statutes. Essentially it is any unit of state or local government and any public or private entity, i.e., person, partnership, corporation, etc., acting on behalf of any public agency. Some of the entities included within this definition are pretty obvious, but whether an entity is acting on behalf of the a public agency can be a bit tricky at times.
Entities with more public roles, such as Advisory boards and committees to public agencies, are included in this “agency” category. More private entities, such as non-appointed or non-elected individuals and corporations, present a more of a dilemma when trying to determine whether they have to abide by the public records requirements. The Florida Supreme Court has provided a set of nine factors to help with determining when a private entity is acting on behalf of a public agency. They are as follows:
- the level of public funding;
- commingling of funds;
- whether the activity was conducted on publicly owned property;
- whether services contracted for are an integral part of the public agency’s chosen decision-making process;
- whether the private entity is performing a governmental function or a function which the public agency otherwise would perform;
- the extent of the public agency’s involvement with, regulation of, or control over the private entity;
- whether the private entity was created by the public agency;
- whether the public agency has a substantial financial interest in the private entity; and
- for who’s benefit the private entity is functioning.
News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029, 1031 (Fla. 1992).
This list of factors is quite a lot to consider, so what do you really want to look to, at least initially, to get a good idea of whether the entity is an “agency.” Well, look at any contracts (including leases) between the entity and the government and review the statutes, ordinances, by-laws, articles, or charters to help get a description of the purpose, goals, and tasks of the entity. It should be noted that simply providing services to the government and not in place of a government agency or public body in exchange for payment is likely, without more, not enough to be an “agency” for public records purposes. For example, an engineering company who is hired to act as the city’s engineer (or engineering company) and provide engineering services to the city is likely subject in some way to the Public Records Act, but simply being hired by a city to provide an engineering design for the city on a particular project is likely not enough.