A&A: Foundation that gives millions to county agency claims CPRA doesn’t apply to them

Asked & AnsweredQ: I am investigating a foster care shelter in California. When a child is removed from an abusive home, the child is taken to this shelter to wait for a foster home.

The shelter is run by the county.  However,  it receives major funding from a foundation. The foundation and the shelter have the same name except the foundation has the word foundation at the end. It was started by a judge who formerly oversaw foster care court.

I cannot find any evidence that the foundation is receiving any government money but I’m only working off of IRS documents.

The foundation has given over seven million to the shelter and has helped erect a new building for the shelter. The foundation’s website shows an obvious collaboration between the county shelter and the foundation.

I would like to get my hands on the minutes and other information about the foundation but they don’t seem to be a non-profit that falls into the categories covered in the CPRA. Even if the non-profit does not take money from the county, can it function as an agent of the government by actively fundraising and when the two intermingle their decision making? And does that make them subject to the CPRA?

A: The Public Records Act, borrowing the definition from the Brown Act (California’s open meeting law), applies only to nonprofit organizations that either

(1) were created by an official act of a legislative body  [or]

(2) share a member with an agency’s governing body and receive funds from that same agency.  See Govt. Code sections 6252(b) and 54952(c), (d).

Depending on whether the Foundation meets this test, it may or may not be subject to the Public Records Act. (It does not sound like it was created by an official act of a legislative body, since you say that it was started by a judge overseeing the foster care system at the time.)

If one of the board members sits is also a member of a legislative body (i.e., perhaps a county supervisor or city council member), and the Foundation also receives funds from that same legislative body, then it may be that the Foundation is subject to the Public Records Act and the Brown Act.)

If you suspect that there is a deeper connection between the Foundation and the county, you might want to request public records from the county related to its communications with the Foundation, as any records that are in its possession regarding the Foundation would presumptively be open to public scrutiny.

If the Foundation and the county are intermingling their decision making, then it would seem that there should be records in the county’s possession that reflect this, i.e., emails between Foundation officials and county representatives (either staff or elected).

You can find additional information about submitting a public records request on the FAC’s website here:  Sample CPRA letter

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.