Question
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?
Answer
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.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.