Open Records Decision No. 302
January 15, 1982

Re:  Availability under Open Records Act of information held by non-profit corporation

Mr. Neeley C. Lewis
Attorney at Law
P. O. Drawer 313
114 N. Washington
Bryan, Texas  77801

Dear Mr. Lewis:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether certain information in the files of the Brazos County Industrial 
Foundation is available to the public.

	The Open Records Act is applicable to the foundation only if it is “governmental 
body” as defined in section 2(1)(F) of the act:

the part, section, or portion of every organization, corporation, 
commission, committee, institution, or agency which is supported in 
whole or in part by public funds, or which expends public funds.  
Public funds as used herein shall mean funds of the State of Texas 
or any governmental subdivision thereof . . .

	The Brazos County Industrial Foundation is a non-profit corporation whose 
purposes, according to its articles of incorporation, are, inter alia:

. . . to render aid to manufacturing and industrial enterprises situated 
in such area [Brazos County]; and to induce the location in said 
County of other manufacturing and industrial establishments.

	In Open Records Decision No. 228 (1979), we were asked to determine whether 
the North Texas Commission, a private non-profit corporation chartered to promote the 
interest of the Dallas-Fort Worth metropolitan area, was a “governmental body” for 
purposes of the Open Records Act.  Although the city of Fort Worth had contracted with 
the commission to pay it $80,000 per year for three years, the contract did not impose “a 
specific and definite obligation on the commission to provide a measurable amount of 
service in exchange for a certain amount of money.”  Open Records Decision No. 228 
found that the city of Fort Worth had to be considered in the position of “supporting” the 
commission with public funds.  The funds paid to the commission were used for its 
“general support . . . rather than being attributable to specific payment for specific 
measurable services.”  As a result, the decision concluded that the North Texas 
Commission was “supported . . . in part by public funds,” and hence, was a governmental 
body under the Open Records Act.  See Open Records Decision Nos. 201 (1978); 195 
(1978).

	Open Records Decision No. 228 (1979) held that the phrase “supported in whole 
or in part by public funds” refers to any agreement between a political subdivision and 
any “organization, corporation, commission, committee, institution, or agency” which 
transfers public funds from the political subdivision to such entity, but fails to “[impose] 
a specific and definite obligation on the [entity] to provide a measurable amount of 
service in exchange for a certain amount of money as would be expected in a typical 
arms-length contract for services between a vendor and purchaser.”  This agreement 
failed to provide adequate consideration flowing to the political subdivision, and the 
public funds passing to such entity, although in the possession of private hands, retained 
their character as public funds.  See Parr v. Duval County, 304 S.W.2d 957 (Tex. Civ. 
App. - Eastland 1957, writ ref'd n.r.e.); City of Fort Worth v. Reynolds, 190 S.W. 501 
(Tex. Civ. App. - Fort Worth 1916, writ dism'd w.o.m.).

	The Brazos County Industrial Foundation is similar in many respects to the North 
Texas Commission.  You indicate that in 1980, the foundation received an unrestricted 
grant of $48,000 from the city of Bryan.  In our opinion, such a grant is virtually 
identical to the funds paid to the North Texas Commission by the city of Fort Worth.  
Therefore, we must conclude that the foundation is “supported . . . in part by public 
funds.”  Accordingly, the Brazos County Industrial Foundation is a “governmental body” 
under section 2(1)(F) of the Open Records Act.

	The documents being sought in this instance are those subsequent to January 1, 
1979, which relate to the foundation's attempts to recruit Westinghouse Corporation to 
the Brazos County area.  You have not suggested the applicability of any particular 
exception to the information except section 3(a)(4).  Section 3(a)(4) excepts information 
“which, if released, would give advantage to competitors or bidders.”  Even if the 
exception could be construed to apply to industrial recruitment, it is not applicable after 
bidding has been completed and a particular contract is in effect.  Open Records Decision 
No. 232 (1979).  We are advised that the Westinghouse Corporation has been 
successfully recruited to the Brazos County area.  Consequently, the information is not 
excepted under section 3(a)(4).

	No other exception under section 3(a) is clearly applicable to the documents you 
have submitted.  We conclude therefore that information in the files of the Brazos 
County Industrial Foundation relating to the recruitment of Westinghouse Corporation is 
available to the public under the Open Records Act.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gary III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Roxanne Caperton
Rick Gilpin
Jim Moellinger
Bruce Youngblood