Q: I am a reporter working on a story about a recent dog shooting by a police officer although animal control officers say they had the situation under control. Reports were filed by both Humane Society animal control officers on the scene when the dog was tasered and shot by the officer. I understand one of the reports clearly calls into question the necessity of the shooting, but my request for the documents was denied by the Humane Society on the grounds that they are a private entity. However, their website describes some parts are private non-profit and others–animal control–are not. Wondering if they are right?
A: Whether or not the Humane Society is covered by the Public Records Act would depend on how the Society was created, funded and governed.
In order to be subject to the Act, the organization must qualify as a “legislative body” of a local agency. The Act explicitly provides that “nonprofit entities that are legislative bodies of a local agency” pursuant to Section 54952 of the Brown Act are “local agencies” subject to the Act.
In turn, subsection (c) of section 54952 provides:
As used in this chapter, “legislative body” means (c)
- (1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:
- (A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.
- (B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.
- (2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member.
Thus, the Humane Society would be subject to the PRA if either
- (1) it was created by another body (i.e., the City) subject to the Brown Act to exercise authority that may lawfully be delegated by that body to a private entity (i.e., animal control), or
- (2) it receives funds from a local agency subject to the Brown Act and at least one voting member of the Society’s governing body is a member of the legislative body of the local agency subject to the Brown Act who was appointed to that position by the legislative body of the local agency.
If the Society meets the criteria under either of these two subsections, then it is possible that the field reports are required to be disclosed under the Act, assuming no other exemption (i.e.,the exemption apply to investigative records of law enforcement) applies. Note that in order for this exemption to apply, the Society would have to be considered a local law enforcement agency, so you’d want to consider whether the officers have been given law enforcement powers. (By comparison, code enforcement officers who work for cities and counties, typically in the planning or community development department, may be covered by this exemption, since they have the power to issue citations and the like, so unfortunately, investigative reports from these departments are often excluded from public view due to the exemption.)
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.