DocketNumber： CC 92C-10440; CA A75255; SC S40517
Judges： Carson, Fadeley, Gillette, Graber, Hoomissen, Unis
Filed Date： 8/11/1994
Status： Precedential
Modified Date： 11/13/2024
In this action for injunctive relief, plaintiffs sought to inspect records maintained by defendant, a “fact-finding team” that had been selected by a private association of school administrators. The team allegedly was charged by a public school district board with investigating, reporting on, and making recommendations with respect to certain aspects of the operation of a high school within the district that had become the subject of public controversy. Only the team was named as defendant; neither the school district nor its board is a party to this litigation. The trial court dismissed the action on the ground that plaintiffs had not alleged sufficient facts to show that defendant team was a “public body” subject to the Inspection of Public Records Law, ORS 192.410 to 192.505. A divided panel of the Court of Appeals reversed, the majority holding that plaintiffs had alleged facts sufficient to show that defendant was a “public body.” Marks v. McKenzie High School Fact-Finding Team, 121 Or App 146, 854 P2d 488 (1993). We allowed review and now reverse the decision of the Court of Appeals.
For the purpose of review, we assume the truth of all well-pleaded facts alleged in the complaint and give plaintiffs the benefit of all favorable inferences that may be drawn from those facts. Stringer v. Car Data Systems, Inc., 314 Or 576, 584, 841 P2d 1183 (1992); Oksenholt v. Lederle Laboratories, 294 Or 213, 215, 656 P2d 293 (1982). The complaint — which is scanty — alleges that, on December 18, 1991, the school board for the McKenzie School District asked the Confederation of Oregon School Administrators (COSA)
The complaint further alleges that, in February 1992, plaintiffs — a group of parents with children in the McKenzie School District — sought to inspect records generated and maintained by defendant team in the course of its investigation. Defendant refused the request. Plaintiffs asked the Marion County District Attorney
Defendant moved to dismiss the action on the ground that it was not a “public body” within the meaning
Following entry of judgment, plaintiffs appealed the dismissal of their action and, as noted, a divided panel of the Court of Appeals reversed and remanded. The lead opinion in the Court of Appeals held that plaintiffs had “alleged facts sufficient to show that defendant was a commission of the school district” and, therefore, was a “public body” within the meaning of ORS 192.410(3). Marks v. McKenzie High School Fact-Finding Team, supra, 121 Or App at 149. The lead opinion concluded that the word “commission” should be “broadly defined to include non-governmental groups performing duties at the request of a governmental body.” Ibid. A second member of the panel concurred, concluding in a separate opinion that “[t]he team is a ‘commission’ or ‘agency’ of the school district under ORS 192.410([3]) because it performed school district business at the district’s request and under its authority and was accountable to the school board for its effort.” Id. at 151 (Durham, J., concurring). The third member of the panel dissented, concluding that the term “public body” in ORS 192.410(3) was intended to encompass only “officially constituted governmental bodies.” Id. at 152 (Deits, P. J., dissenting). We allowed review to address the proper interpretation of ORS 192.410(3).
ORS 192.420 provides that, subject to certain exceptions,
“ ‘Public body’ includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.”
(Emphasis supplied.)
Plaintiffs argue that, because the district “commissioned” defendant to investigate concerns regarding McKenzie High School, defendant was a “commission” of the district and therefore a “public body” within the meaning of ORS 192.410(3). Defendant team contends, on the other hand, that the word “commission,” as used in ORS 192.410(3), is aterm of art that “connotes conveyance of legal authority.” Defendant argues that, as a committee selected by COSA, it is not a “commission” of the school district because, under the facts alleged by plaintiffs in their complaint, the district did not delegate to defendant any “specific legal authority” “to carry out some official duty, service or responsibility.”
In interpreting a statute, this court’s task is to determine the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). We begin with the text and context of the statute in question. Id. at 610-11. Context includes “other provisions of the same statute and other related statutes.” Id. at 611.
ORS 192.410(3) defines “public body” to include a variety of state and local governmental entities and “any other public agency of this state.” The question thus becomes whether the legislature intended to encompass an entity such
When the inquiry into the text and context of a statute does not make the legislature’s intent clear, this court looks to legislative history for guidance. PGE v. Bureau of Labor and Industries, supra, 317 Or at 611-12. In this case, however, the legislative history of the Inspection of Public Records Law provides little assistance. It is clear that the purpose of the legislation was to make the records of public bodies available to the general public, in order to further the general public’s ongoing review of the actions of bodies created to serve the public interest, but there is nothing in that history to suggest that the legislature ever considered specifically the scope or meaning of the term “commission” or “public agency.”
In a case such as this, where the text, context, and legislative history of the statute under consideration do not make the legislative intent clear, this court may resort to general maxims of statutory construction to aid in resolving the uncertainty. PGE v. Bureau of Labor and Industries, supra, 317 Or at 612. Under one of those maxims, the court will attempt to determine how the legislature would have intended the statute to be applied had it considered the issue. Ibid.) see also Westwood Homeowners Assn., Inc. v. Lane County, 318 Or 146, 158, 864 P2d 350 (1993) (applying maxim), modified 318 Or 327, 866 P2d 463 (1994). Applying that maxim to the present case, we believe that the legislature would have intended that the overarching defined term ‘ ‘public body” in the Oregon Inspection of Public Records Law be applied in a manner that is similar to the way that the
In most instances, other jurisdictions have selected the term “agency,” rather than “body,” as the broad operative term that describes the range of governmental entities covered by the jurisdiction’s public records law. However, our reading of the cases leads us to conclude that the difference in terms does not connote a difference in concept: As overarching ideas, the two terms are fungible.
In determining whether a particular entity qualifies as an “agency” within the meaning of the federal Freedom of Information Act (FOIA), which was one of the statutes reviewed by the Oregon legislature before it enacted the Public Records Law, “the federal courts have developed what may be termed a ‘functional equivalent’ test.” Board of Trustees v. Freedom of Info. Comm’n, 181 Conn 544, 436 A2d 266, 270 (1980). Under that test, a court analyzes various factors to determine whether, on balance, the entity in question is the “functional equivalent” of a public agency.
One of. the earlier cases in which a federal court applied the “functional equivalent” test was Washington Research Proj., Inc. v. Department of H., E. & W., 504 F2d 238 (DC Cir 1974), cert den 421 US 963 (1975). In that case, the issue was whether “initial review groups” (IRGs) — nongovernmental consultants used by the National Institutes of Mental Health (NIMH) to review grant proposals —
“Clearly, the work now done by IRGs could again be done by the NAMHC[8 ] if it sat continuously instead of meeting three times a year for about two days each time. Employing consultants to improve the quality of work that is done cannot elevate the consultants to the status of the agency for which they work unless they become the functional equivalent of the agency, making its decisions for it. * * *
“The important consideration is whether [the consultant] has any authority in law to make decisions. The IRGs have not * *
Ibid.
Although the court in Washington Research put primary emphasis on the legal authority to make decisions, other federal courts have applied a more wide-ranging analysis. In CIBA-GEIGY Corp. v. Mathews, 428 F Supp 523, 526-27 (SDNY 1977), the court summarized the “functional equivalent” analysis as follows:
“Courts analyzing the ‘agency’ status of various organizational entities under the FOIA have not applied a precise standard but have adopted a functional analysis, examining numerous factors including whether the organization has the authority in law to perform the decisionmaking functions of a federal agency and whether its organizational structure and daily operations are subject to substantial federal control.”
The court went on to conclude that a group of university research clinics participating in a joint research project funded by the National Institute of Health was not an “agency” under the FOIA, because “the degree of Government involvement and control in the operations” of the group was insufficient “as a matter of law.” Id. at 528.
“Courts making this analysis have not developed a specific standard by which each entity can be judged. Rather, the diverse array of organizational arrangements that exist for the performance of government functions requires that ‘each arrangement must be examined anew and in its own context.’ All relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.
“The following factors are among those most often cited in this analysis: The performance of governmental functions by the entity, the presence of substantial government control over the entity’s day to day operations, authority of the entity to make and implement decisions, the nature of the government’s financial involvement with the entity, the existence of a federal charter, and the status of the entity’s employees.”
Id. at 778-79 (citations omitted). Applying those factors to the case before it, the court concluded that Conrail was not an “agency” because it “lacks those attributes of agencies that have been considered significant in this analysis.” Id. at 779.
In summary, the case law that has evolved under the FOIA has developed a “functional equivalent” analysis for the purpose of determining which entities fall within the scope of the Act. That case law has developed after the FOIA was used as one of the sources for creation of the Oregon law. Thus, it is in no sense binding. Nevertheless, as noted above, we believe that the Oregon legislature would have intended the Oregon law to be applied in a manner consistent with the application of those statutes, like the FOIA, upon which the Oregon law was modeled. We turn to an examination of the experience of our sister states.
“The major and discrete criteria which federal courts have utilized in employing a functional equivalent test are: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.”
436 A2d at 270-71. The court went on to conclude that, under the foregoing criteria, a specially chartered educational institution was a “public agency” for purposes of the Connecticut FOIA because the institution
‘ ‘performs a basic governmental function in providing public education at a secondary school level, is nearly entirely (over ninety-five percent) publicly financed, has its operations examined and certified by the state hoard of education so as to be eligible for reimbursement for tuition fees by local towns and for other statutory benefits, and is an entity created by statute for the sole purpose of maintaining a public school for the benefit of the inhabitants of Woodstock and other towns in the vicinity * * *.”
Id. at 271.
In a later case, the Supreme. Court of Connecticut applied the same “functional equivalent” test to conclude that a statewide humane society was not a “public agency” within the meaning of the Connecticut FOIA. Connecticut Humane Soc. v. Freedom of Info. Comm’n, 218 Conn 757, 591 A2d 395 (1991). The court stated that “whether a hybrid public/private entity is a public agency subject to the FOIA requires a balanced case-by-case consideration of various factors.” 591 A2d at 397. The court observed that, although the society had a government charter, the society did not receive any government funding, the state did not control or regulate the society in any way, and the society was not
Courts in New York and Florida also have applied “functional equivalent” analyses derived from federal case law. In Consolidated Edison Co. v. Insurance Dept., 140 Misc 2d 969, 532 NYS2d 186 (Sup Ct 1988), the issue was whether an entity charged with the task of liquidating insolvent insurance carriers was an “agency” within the meaning of the New York Freedom of Information Law. Applying several factors from federal cases under the FOIA, the court concluded that the entity was not an “agency” because the entity had “none of the attributes which are ordinarily associated with a State agency or bureau.” 532 NYS2d at 189.
In Parsons & Whittemore v. Metro. Dade County, 429 So 2d 343 (Fla App 1983), the issue was whether private entities that had entered into business contracts with a county were subject to the disclosure obligation imposed by the Florida Public Records Act on private business entities that act “on behalf of’ a public agency. After pointing out the factors analyzed in federal case law under the FOIA, the court concluded that the private entities were not subject to the state disclosure requirement, because the entities “did not perform an essentially governmental function or participate in any decisional process which would be undermined if their records were not open to public inspection.” Id. at 346.
Finally, courts in several other states have taken similar “functional” approaches to determining whether particular entities are subject to state public records or public meetings laws. See, e.g., North Cent. Ass’n of Colleges & Schools v. Troutt Bros., 261 Ark 378, 548 SW2d 825 (1977) (holding that state committee of college-accrediting body was subject to public meetings law); Hopf v. Topcorp, Inc., 170 Ill App 3d 85, 527 NE2d 1 (1988) (holding that development corporations owned by city and private university were not public entities subject to public meetings law) appeal den 122 Ill 2d 575; Guste v. Nicholls College Foundation, 564 So 2d 682 (La 1990) (holdingthat alumni federation of state university was public body subject to public records law); Bradbury v. Shaw, 116 NH 388, 360 A2d 123 (1976) (holding that
Because the lines of analysis in the foregoing cases became fully developed only after the Oregon law took effect, they are not expositions of the expressed intent of the Oregon legislature. Nevertheless, we find the analysis that emerges from those cases persuasive as to what the legislature would have intended, had it considered the specific issue. We believe that, for purposes of construing Oregon’s operative term, the legislature would have intended this court to apply a “functional” approach similar to that taken by the federal courts and by the courts of many of our sister states (as detailed above). Accordingly, we hold that the determination of whether a particular entity is a “public body” within the meaning of ORS 192.410(3) will depend on the character of that entity and the nature and attributes of that entity’s relationship with government and governmental decision-making. In determining the proper characterization of a particular entity, the following factors, which we have synthesized from the case law discussed above, are relevant, although no single factor is either indispensable or dis-positive:
(1) The entity’s origin (e.g., whether the entity was created hy government or had some origin independent of government).
(2) The nature of the function assigned to and performed by the entity (e.g., whether that function is one traditionally associated with government or is one commonly performed by private entities).
(3) The scope of the authority granted to and exercised by the entity (e.g., does the entity have the authority to make binding governmental decisions, or is it limited to making nonbinding recommendations).
(4) The nature and level of government financial involvement with the entity. (Financial support may include*464 payment of the entity’s members or fees as well as provision of facilities, supplies, and other nonmonetary support.)
(5) The nature and scope of government control over the entity’s operation.
(6) The status of the entity’s officers and employees (e.g., whether the officers and employees are government officials or government employees).9
We turn to an analysis of the foregoing factors under the facts of the present case as pleaded by plaintiffs in their complaint. We note, first, that defendant did not exist until its three members were appointed by COSA, which was acting at the behest of the school board of the McKenzie School District. Although COSA, a nongovernmental body, played a role in defendant’s creation by appointing the actual team members, the school board was ultimately responsible for defendant’s existence. The fact that defendant was created at the initiative of the school board — a government body — weighs in favor of finding that defendant is a “public body.”
The function to be performed by defendant — an investigation of McKenzie High School’s administration of ORS 339.420 and related issues (see supra note 2) — was related to the operation of that school. Unquestionably, the operation of a public school is a function traditionally associated with government. Moreover, statutes provide that “the district school board is authorized to transact all business coming within the jurisdiction of the district,” ORS 332.072, and that one of the duties of a district school board is “[t]o perform such other duties as the wants of the district may from time to time demand,” ORS 332.105(l)(a). The investigatory function to be performed by defendant was sufficiently related to the statutory duties of the school board to weigh in favor of finding that defendant is a “public body.”
In contrast, the scope of the authority that plaintiffs allege was granted to defendant weighs against finding that defendant is a “public body.” Plaintiffs have not alleged that defendant had any authority to make decisions that would
The remaining factors in our “functional” analysis of defendant may be dealt with briefly. There is nothing in plaintiffs’ complaint to indicate that defendant received any public funds or other financial support from the school district. Also, there is nothing in the complaint to show that the district exercised any control over defendant’s operation. According to the allegations of the complaint, the school board did nothing more than define the scope of defendant’s investigatory role, i.e., the school board identified the area of public business with which it was concerned. There is nothing in the complaint to suggest that the board exercised any sort of supervision over defendant’s day-today operation. On the contrary, defendant’s “progress report,” which plaintiffs appended to their complaint, suggests that defendant itself was in charge of the manner in which it conducted the inquiry. Neither does the complaint allege that defendant’s team members or COSA were compensated by the school district or any other government entity for their work on the investigation. Finally, the designation of the entity as a “fact-finding team” sheds no light on its characterization for purposes of the Public Records Law. In summary, there are no facts alleged in the complaint to show that government was significantly
Weighing together all the foregoing factors, we conclude that the facts alleged by plaintiffs are insufficient to show that defendant is a “public body” within the meaning of ORS 192.410(3). It is true that plaintiffs allege that defendant was created at the behest of the school board to perform an investigatory function related to the statutory duties of the board. Beyond that, however, there is nothing in the complaint to show that the school board had any control or supervision over defendant’s operation, or that defendant received any government support, monetary or otherwise. More importantly, the complaint fails to show that defendant was given any decision-making authority, other than the authority that defendant exercised over the conduct of the investigation. Without any greater decision-making authority, defendant’s investigation could have affected matters of public concern only through the vehicle of defendant’s report, which would have been accessible as a public record of the school board when submitted to the board. The policy of governmental openness that underlies the Inspection of Public Records Law rests on the premise that the public should have access to information on which governmental decisions are based. Cf. ORS 192.620 (“The Oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which such decisions were made”) (emphasis supplied). In this case, because defendant’s operations were independent of government, and because defendant did not have any authority to make decisions for the school board, access to defendant’s records was not necessary to serve the policy goals behind the Inspection of Public Records Law.
Plaintiffs’ complaint failed to state sufficient facts to show that defendant was a “public body” subject to the Inspection of Public Records Law, as we now have explained
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
COSA is a private, nonprofit corporation.
In a “Progress Report” submitted to the school district by defendant, a copy of which was appended to the complaint, defendant summarized its understanding of its “charge” as follows:
*454 “The Team will submit a report to the McKenzie School District which will:
“1. Determine whether McKenzie High School encourages in its students the development of respect for the individual differences of other students.
“2. Determine if ORS 339.420 has been appropriately administered. ORS 339.420 provides, ‘Attendance at religious instruction. Upon application of the parent or guardian of the child, or, if the child has attained the age of majority, upon application of the child, a child attending the public school may be excused from school for periods not exceeding... five hours in any week for secondary pupils to attend weekday schools giving instruction in religion.’
“3. Determine whether discipline guidelines, relating to denial of class time are appropriate and, if so, whether those guidelines have been administered appropriately.
“4. Determine whether the complaint process is easily accessible and fairly administered.
“5. Determine whether the District employment practices are fair and equitable and whether they are administered without regard to religion.
“6. Make any recommendations [the team] deems appropriate.”
Apparently, plaintiffs went to the Marion County District Attorney because COSA (and the fact-finding team that COSA appointed) is headquartered in Salem, and because ORS 192.460 provides that a petition to review a denial of the right to inspect a public record of a public body other than a state agency must be made to the “the district attorney of the county in which the public body is located.”
Before 1993, the definition of “public body” appeared at ORS 192.410(1). In 1993, however, the legislature reorganized ORS 192.410, and the definition of “public body” now appears in subsection (3). Or Laws 1993, ch 787, § 4. The text of the definition has not changed.
The exceptions to ORS 192.420, which are set out in ORS 192.501 to 192.505, are not applicable to the present action in its current posture.
The complaint does not allege that the school district, which is a public body, “prepared, owned, used or retained” the records of the team that are sought by plaintiffs. Insofar as the complaint alleges, the school district had access only to the team’s report. That report plainly is a public record of a public body, and its disclosure is not at issue here.
Defendant argues that it cannot be a “public body,” because plaintiffs alleged in their complaint that defendant was an “independent task group” of COSA, which is a private, nonprofit corporation. Defendant contends that, as an “activity” of a private entity like COSA, defendant itself is also a private entity. The private status of COSA, or of defendant itself, however, is not necessarily dispositive of whether defendant can be characterized as a “public body” for purposes of the Inspection of Public Records Law.
The NAMHC, or National Advisory Mental Health Council, was the official body statutorily authorized to make recommendations to NIMH regarding grant proposals. The NAMHC had created the IRGs to assist in the recommendation process.
The foregoing list is not intended to be exclusive. Any factor bearing on the character of the entity and the entity’s relationship with government may be relevant in determining whether that entity is a “public body” subject to the Inspection of Public Records Law.
The one fact in the complaint that suggests some involvement of the school district in defendant’s operation is a statement appearing in defendant’s “progress report” that an individual could request an interview with defendant by calling the “District office.” That statement alone, however, is insufficient to support an inference that government had any significant involvement in defendant’s operation.