Q: A nonprofit 501c3 foundation was set up to raise money for a public agency, incorporates the name of the agency into its name, uses the agency’s facilities and relies on the agency to act in the capacity of employer of its staff. Is it arguably a public agency, and as such subject to CPRA?
A: The Public Records Act, borrowing the definition from the Brown Act, applies only to nonprofit organizations that either:
- Were created by an official act of a legislative body or
- Shares a member with an agency’s governing body and receives funds from that same agency. See Govt. Code sections 6252(b) and 54952(c), (d).
There is a particular law, the McKee Act that extends the Public Records act to the non-profit foundations and other auxiliary organizations that support the California community colleges, state university campuses and UC.
However, I cannot say that the arrangement you describe comports with the law in other respects — such as the propriety of staffing a non-profit with public employees. Those questions of law are beyond the areas of expertise offered through this hotline.
However, if there is such an integration of functions, then it seems the public agency itself would have copious records of the workings of the non-profit foundation that you could seek directly from the public agency.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. I apologize for the delay in getting back to you.