Background

• New Mexico IPRA defines public records broadly and applies to records held by private entities acting on behalf of a public body.
• The City of Truth or Consequences granted Baja Broadband a franchise to operate a cable system and to provide a PEG channel; the City managed PEG access.
• The City contracted with the Sierra Community Council (SCC) to operate the PEG channel; SCC was designated an independent contractor funded by the City.
• The City leased the civic center basement to SCC; Jay Hopkins served as SCC Public Access Cable Project Director and recorded City meetings using City-purchased equipment.
• Toomey requested recordings of several City meetings; the Clerk and Hopkins indicated the City did not maintain such recordings; the district court later found SCC an independent contractor and not subject to IPRA at the time of the request.
• On appeal, the court held that SCC was the functional equivalent of a public agency under IPRA and that the recordings were public records subject to inspection; remanded to determine damages and fees.

Issues

Key Cases Cited

• News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Grp., Inc., 596 So. 2d 1029 (Fla. 1992) (totality of factors approach to determine agency-equivalent status under public records law)
• Mem’l Hosp.-West Volusia, Inc. v. News-Journal Corp., 729 So.2d 373 (Fla. 1999) (open records apply when private operator serves public purpose under contract)
• B & S Utils., Inc. v. Baskerville-Donovan, Inc., 988 So.2d 17 (Fla. Dist. Ct. App. 2008) (open records when private entity performs public functions delegated by government)
• Dade Aviation Consultants v. Knight Ridder, Inc., 800 So.2d 302 (Fla. Dist. Ct. App. 2001) (private venture under public project may be subject to open records)
• Connecticut Humane Soc’y v. Freedom of Info. Comm’n, 591 A.2d 395 (Conn. 1991) (functional equivalent approach; factors include funding, control, and public purpose)