Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 28, 2008

The Honorable Tracy O. King Opinion No. GA-0603
Chair, Committee on Border and
International Affairs Re: Whether a non-profit economic development
Texas House of Representatives foundation that receives partial funding from
P.O. Box 2910 quasi-public utilities is subject to the Texas Public
Austin, Texas 78768-2910 Information Act (RQ-0619-GA).

Dear Representative King:

Without identifying any particular entity, you ask whether a "private non-profit economic
development foundation which receives part of its funding from 'quasi-public utilities'" is subject
to the Texas Public Information Act. l You also ask ifthe private non-profit economic development
foundation must "account to the public for the portion of its budget received from [CPS Energy or
San Antonio Water System] if so requested under the Texas Public Information Act[.]" Request
Letter, supra note 1, at 1.

The Public Information Act (the "Act") found in chapter 552 ofthe Government Code applies
to information "collected, assembled, or maintained" by or for a governmental body. TEX. GOV'T
CODE ANN. § 552.002(a) (Vernon 2004). In its broad definition of "governmental body," the Act
does include "the part, section, or portion of an organization, corporation, commission, committee,
institution, or agency that spends or that is supported in whole or in part by public funds." Id.
§ 552.003(1 )(A)(xii); see also id. § 552.003(5) (defining "public funds"). Private entities fall within
this definition of "governmental body" if two requirements are met. See id. § 552.003(1)(A)(xii).
The first requirement is whether the funds at issue are public. Id.; see also Tex. Att'y Gen. ORD-569
(1990) at- 5 ("The threshold question is whether the commission receives any funds from the City
...."). If the funds at issue are public, the second requirement is whether the private entity is
"supported" by or spends those public funds. See Kneeland v. Nat 'I Collegiate Athletic Ass 'n, 850
F.2d 224,228 (5th Cir. 1988), cert. denied, 488 U.S. 1042 (1989) (defining question as "whether
those [public] funds constitute the 'support' envisioned by the Act"). Thus, the general answer to
your first question is that a "private non-profit economic development foundation which receives
part of its funding from 'quasi-public utilities'" is subject to the Act as a governmental body where

lSee Letter from Honorable Tracy O. King, Chair, Committee on Border & International Affairs, Texas House
of Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Sept. 6,2007) (on file with the Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Tracy O. King - Page 2 (GA-0603)

the foundation, or a part thereof, is supported by or spends public funds. See Request Letter, supra
note 1, at 1.

However, to the extent you inquire about a particular non-profit economic development
foundation, we cannot answer your question. 2 While the determination regarding whether funds are
public is usually straightforward, the determination regarding whether an entity is "supported" by
the public funds 3 "requires an analysis ofthe facts surrounding each entity." Blankenship v. Brazos
Higher Educ. Auth., Inc., 975 S.W.2d 353, 362 (Tex. App.-Waco 1998, pet. denied); see also
Kneeland, 850 F.2d at 228 (recognizing that attorney general determinations relating to open records
and public information that consider the question are generally fact specific). Such a fact-intensive
inquiry is inappropriate to the attorney general opinion process. See Tex. Att'y Gen. Ope No.
GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").

Without considering any particular entity, we can advise you generally that a private entity
is not automatically a governmental body subject to the Act "simply because [it] provide[s] specific
goods or services under a contract with a government body." Kneeland, 850 F.2d at 228. Attorney
general decisions issued under chapter 5524 distinguish between private entities that receive public
funds in return for specific, measurable services and entities that receive public funds as general
support. See Tex. Att'y Gen. Ope No. JM-821 (1987) at 3; Tex. Att'y Gen. ORD-228 (1979) at 2.
The Fifth Circuit Court ofAppeals, examining attorney general decisions issued under chapter 552' s
predecessor statute, has delineated "three distinct patterns of analysis" that have been used to
examine the facts of the relationship between the private entity and the government body providing
the public funds. Kneeland, 850 F.2d at 228. In Kneeland, the court stated:

2In its briefmg to us on your question, the San Antonio Economic Development Foundation, Inc. ("SAEDF")
states it is the "private non-profit economic development foundation" about which you inquire. See Letter from Mario
A. Hernandez, President, San Antonio Economic Development Foundation Inc., to Office of the Attorney General,
Opinion Committee, at 1 (Oct. 19, 2007) (on file with the Opinion Committee) [hereinafter SAEDF Brief]. The SAEDF
provides factual information regarding its "marketing agreements" with CPS and SAWS. See ide at 2. Even were we
to assume that SAEDF is the entity about which you inquire, determining whether a particular private entity is a
governmental body under the Public Information Act requires a determination of facts, a determination inappropriate
for an attorney general opinion under chapter 402, Government Code. See Blankenship V. Brazos Higher Educ. Auth.,
Inc., 975 S.W.2d 353, 362 (Tex. App.-Waco 1998, pet. denied); see also Tex. Att'y Gen. Opt No. GA-0446 (2006)
at 18 ("Questions of fact are not appropriate to the opinion process.").

3The question whether an entity is a governmental body under section 552.003(1)(A)(xii) is usually resolved
with an analysis regarding the nature of the support provided with the public funds. See Tex. Att'y Gen. ORD-602
(1992) at 5 (determining that the portion of the Dallas Museum of Art supported by public funds was a governmental
body); ORD-228 (1979) at 2 (determining that a private, nonprofit corporation, with a purpose of promoting interest of
the area, was a governmental body because of support of public funds); see also Tex. Att'y Gen. 0R2007-06167 at 4
(determining that the Laredo Family Planning Services was supported by public funds and therefore a governmental
body). We find an isolated instance where a private entity was determined to be a governmental body under section
552.003(1)(A)(xii) due to the fact the entity spent public funds. See Tex. Att'y Gen. ORD-273 (1981) at 1. The 1981
decision concluded that because the entity was reimbursed with public funds, the entity spent public funds and was
therefore a governmental body. See id.

4See infra note 5.
The Honorable Tracy O. King - Page 3 (GA-0603)

The opinions advise that an entity receiving public funds becomes a
governmental body under the Act, unless its relationship with the
government imposes "a specific and definite obligation ... to provide
a measurable amount of service in exchange for a certain amount of
money as would be expected in a typical arms-length contract for
services between a vendor and purchaser." [An] opinion informs that
"a contract or relationship that involves public funds and that
indicates a common purpose or objective or that creates an agency-
type relationship between a private entity and a public entity will
bring the private entity within the ... definition of a 'governmental
body.'" Finally, [another] opinion, citing others, advises that some
entities, such as volunteer fire departments, will be considered
governmental bodies if they provide "services traditionally provided
by governmental bodies."

Id. (citations omitted). Thus, Kneeland requires an examination of: (1) any specific and definite
obligation and whether there was a "measurable amount ofservice in exchange for a certain amount
ofmoney;" (2) any "common purpose or objective that creates an agency-type relationship" between
the public and private entity; and (3) any provision of services that are "traditionally provided by
governmental bodies." Id

To your question then, under Kneeland's three patterns of analysis, a court-or the attorney
general's office rendering a decision under chapter 5525-would examine the provisions of any
contract, or other financial relationship between the foundation and the utilities, to determine the
specificity and definite nature of each ofthe parties' obligations and to determine whether there was
a quidpro quo exchange. And the analysis would require a determination whether the foundation's
purpose is such that it is acting as an agent of the utilities or whether its purpose is to provide a
service ordinarily provided by the utilities.

Your second question is whether a private non-profit economic development foundation must
"account to the public for the portion of its budget received from [CPS and SAWS] if so requested
under the Public Information Act[.]" Request Letter, supra note 1, at 1. If the entity is not a
governmental body under the Act, it is not required by the Act to release any requested information
including the portion ofits budget received from CPS and SAWS. If, and to the extent that, a private
entity is a governmental body under the Act, the entity must release "public information." See TEX.
GOV'T CODE ANN. §§ 552.002 (Vernon 2004) (providing that "public information" is information
"collected, assembled, or maintained under a law or ordinance or in connection with the transaction
of official business"), 552.021 (providing that public information is available to the public),

5S ection 552.301 ofthe Act authorizes the Attorney General to decide whether information requested under the
Act is excepted from required disclosure. TEX. GOV'T CODE ANN. § 552.301(a)-(e) (Vernon Supp. 2007); see also
Kneeland, 850 F.2d at 228 (recognizing Attorney General's express authority to interpret the Act). Compare TEX. GOV'T
CODE ANN. § 402.042(a) (Vernon 2005) (authorizing Attorney General to "issue a written opinion on a question affecting
the public interest ....").
The Honorable Tracy O. King - Page 4 (GA-0603)

552.022(a) (enumerating categories of information that is public information unless otherwise
excepted). Thus, if the entity is a governmental body and if the information is public information,
the Act requires the entity to release the information, ifrequested, unless the entity seeks to withhold
the information under an exception in the Act. See id §§ 552.101-.148 (Vernon 2004 & Supp.
2007) (exceptions). Whether an entity is a governmental body under the Act and whether requested
information, such as a portion of a budget received from "quasi-public utilities," is public
information or excepted from required disclosure is a matter for an attorney general decision under
chapter 552 or a court. See id. §§ 552.301 (Vernon Supp. 2007) (providing mechanism and time
frame in which to seek attorney general decision regarding authority to withhold information
requested under Act), 552.303 (Vernon 2004) (requiring delivery of requested information to the
Attorney General); see also id. §§ 552.101-.147 (Vernon 2004 & Supp. 2007) (providing for
exceptions to required disclosure).
The Honorable Tracy O. King - Page 5 (GA-0603)

SUMMARY

A private entity that is supported in whole or in part by public
funds or that spends public funds is in whole or in part a
governmental body subject to the Public Information Act. Whether
a private entity, such as a non-profit economic development
foundation that receives partial funding from "quasi-public" utilities,
is a governmental body requires a determination regarding the public
nature ofthe funds and whether the public funds are spent or received
by the entity in return for specific, measurable services or as general
support. Such a determination involves the resolution of facts and is
inappropriate for the attorney general opinion process.

Private entities that are in whole or in part governmental
bodies under section 552.003, Government Code, are subject to the
Public Information Act and must make'public information available
to the public. Whether information is public information required to
be disclosed or information otherwise excepted from disclosure is a
matter for an attorney general decision under the Public Information
Act.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee