March 4, 2009

Ms. Ileana Trevino

Memorial Hermann Foundation

9401 Southwest Freeway, Suite 401

Houston, Texas 77074

OR2009-02817

Dear Ms. Trevino:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 335113.

The Memorial Hermann Foundation (the "foundation") received a request for "a copy of the check register for [the foundation] for all checks issued for the year 2007. The register should include the following for each check issued: check number, check date, payee name, and check amount. The check register should be in numerical order by check number." You state that you have released some of the requested information to the requestor. You claim that the remaining information is not subject to the Act because the foundation is not a governmental body for the purposes of the Act. We have considered your arguments. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released).

You assert that the foundation is not a governmental body, and therefore its records are not subject to the Act. Under the Act, the term "governmental body" includes several enumerated kinds of entities and "the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds[.]" Id. § 552.003(1)(A)(xii). The phrase "public funds" means funds of the state or of a governmental subdivision of the state. Id. § 552.003(5).

Both the courts and this office previously have considered the scope of the definition of "governmental body" under the Act and its statutory predecessor. In Kneeland v. National Collegiate Athletic Association, 850 F.2d 224 (5th Cir. 1988), the United States Court of Appeals for the Fifth Circuit recognized that opinions of this office do not declare private persons or businesses to be "governmental bodies" that are subject to the Act "simply because [the persons or businesses] provide specific goods or services under a contract with a government body." Kneeland, 850 F.2d at 228; see Open Records Decision No. 1 (1973). Rather, the Kneeland court noted that in interpreting the predecessor to section 552.003 of the Government Code, this office's opinions generally examine the facts of the relationship between the private entity and the governmental body and apply three distinct patterns of analysis:

The opinions advise that an entity receiving public funds becomes a governmental body under the Act, unless its relationship with the government imposes "a specific and definite obligation . . . 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." Tex. Att'y Gen. No. JM-821 (1987), quoting ORD-228 (1979). That same opinion informs that "a contract or relationship that involves public funds and that indicates a common purpose or objective or that creates an agency-type relationship between a private entity and a public entity will bring the private entity within the . . . definition of a 'governmental body.'" Finally, that opinion, citing others, advises that some entities, such as volunteer fire departments, will be considered governmental bodies if they provide "services traditionally provided by governmental bodies."

Kneeland, 850 F.2d at 228. The Kneeland court ultimately concluded that the National Collegiate Athletic Association (the "NCAA") and the Southwest Conference (the "SWC"), both of which received public funds, were not "governmental bodies" for purposes of the Act because both provided specific, measurable services in return for those funds. See id. at 230-31. Both the NCAA and the SWC were associations made up of both private and public universities. Both the NCAA and the SWC received dues and other revenues from their member institutions. Id. at 226-28. In return for those funds, the NCAA and the SWC provided specific services to their members, such as supporting various NCAA and SWC committees; producing publications, television messages, and statistics; and investigating complaints of violations of NCAA and SWC rules and regulations. Id. at 229-31. The Kneeland court concluded that although the NCAA and the SWC received public funds from some of their members, neither entity was a "governmental body" for purposes of the Act, because the NCAA and SWC did not receive the funds for their general support. Rather, the NCAA and the SWC provided "specific and gaugeable services" in return for the funds that they received from their member public institutions. See id. at 231; see also A.H. Belo Corp. v. S. Methodist Univ., 734 S.W.2d 720 (Tex. App.—Dallas 1987, writ denied) (athletic departments of private-school members of SWC did not receive or spend public funds and thus were not governmental bodies for purposes of Act).

In exploring the scope of the definition of "governmental body" under the Act, this office has distinguished between private entities that receive public funds in return for specific, measurable services and those entities that receive public funds as general support. In Open Records Decision No. 228 (1979), we considered whether the North Texas Commission (the "commission"), a private, nonprofit corporation chartered for the purpose of promoting the interests of the Dallas-Fort Worth metropolitan area, was a governmental body. See Open Records Decision No. 288 at 1. The commission's contract with the City of Fort Worth obligated the city to pay the commission $80,000 per year for three years. Id. The contract obligated the commission, among other things, to "[c]ontinue its current successful programs and implement such new and innovative programs as will further its corporate objectives and common City's interests and activities." Id. at 2. Noting this provision, this office stated that "[e]ven if all other parts of the contract were found to represent a strictly arms-length transaction, we believe that this provision places the various governmental bodies which have entered into the contract in the position of 'supporting' the operation of the [c]ommission with public funds within the meaning of [the predecessor to section 552.003]." Id. Accordingly, the commission was determined to be a governmental body for purposes of the Act. Id.

In Open Records Decision No. 602 (1992), we addressed the status of the Dallas Museum of Art (the "DMA") under the Act. The DMA was a private, nonprofit corporation that had contracted with the City of Dallas to care for and preserve an art collection owned by the city and to maintain, operate, and manage an art museum. See Open Records Decision No. 602 at 1-2. The contract required the city to support the DMA by maintaining the museum building, paying for utility service, and providing funds for other costs of operating the museum. Id. at 2. We noted that an entity that receives public funds is a governmental body under the Act, unless the entity's relationship with the governmental body from which it receives funds imposes "a specific and definite obligation . . . 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." Id. at 4. We found that "the [City of Dallas] is receiving valuable services in exchange for its obligations, but, in our opinion, the very nature of the services the DMA provides to the [City of Dallas] cannot be known, specific, or measurable." Id. at 5. Thus, we concluded that the City of Dallas provided general support to the DMA facilities and operation, making the DMA a governmental body to the extent that it received the city's financial support. Id. Therefore, the DMA's records that related to programs supported by public funds were subject to the Act. Id.

We additionally note that the precise manner of public funding is not the sole dispositive issue in determining whether a particular entity is subject to the Act. See Attorney General Opinion JM-821 at 3 (1987). Other aspects of a contract or relationship that involve the transfer of public funds between a private and a public entity must be considered in determining whether the private entity is a "governmental body" under the Act. Id. at 4. For example, a contract or relationship that involves public funds, and that indicates a common purpose or objective or that creates an agency-type relationship between a private entity and a public entity, will bring the private entity within the definition of a "governmental body" under section 552.003(1)(A)(xii) of the Government Code. The overall nature of the relationship created by the contract is relevant in determining whether the private entity is so closely associated with the governmental body that the private entity falls within the Act.  Id.

In this instance, you inform us that the foundation is a non-profit corporation exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code. You explain, and provide documentation reflecting, that the foundation is organized and operated exclusively for the charitable, scientific, and educational purposes of the Memorial Hermann Healthcare System (the "system"), a non-profit, tax-exempt medical corporation. We understand that the system receives payments from eligible patients, mainly through insurance claims, in exchange for specific medical services. You state that the system reimburses the foundation for its operating costs and the foundation does not receive public funding. You inform us that the foundation receives charitable donations from mainly private sources, and that all money received by the foundation is used for the system's philanthropic support. ⁽¹⁾ Based upon your representations and our review, we find the foundation is not a governmental body subject to the Act. Therefore, the foundation need not respond to the present request for information.

This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497.

Sincerely,

Paige Savoie

Assistant Attorney General

Open Records Division

PS/eeg

Ref: ID# 335113

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Ms. Virginia Alverson

Jackson Walker LLP

901 Main Street, Suite 6000

Dallas, Texas 75202

(w/o enclosures)

Footnotes

1. You acknowledge that in two instances the foundation received charitable donations from public funding. You explain that in 2007, the foundation received two donations from The Woodlands Township (the "township"), a governmental body. However, you explain these two donations were for specific fund-raising campaigns and the "funds were meant only to support those specific activities and were not a general donation to the foundation." Additionally, you state you have released information pertaining to these transactions to the requestor.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer