News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc.

• Decision Date: 05 March 1992
• Docket Number: SUN-SENTINEL,No. 77131,77131
• Citation: 596 So.2d 1029
• Parties: 74 Ed. Law Rep. 414, 17 Fla. L. Weekly S156, 20 Media L. Rep. 1055 NEWS ANDCOMPANY, et al., Petitioners, v. SCHWAB, TWITTY & HANSER ARCHITECTURAL GROUP, INC., etc., et al., Respondents.
• Court: Florida Supreme Court

Page 1029

596 So.2d 1029

74 Ed. Law Rep. 414, 17 Fla. L. Weekly S156,

20 Media L. Rep. 1055

NEWS AND SUN-SENTINEL COMPANY, et al., Petitioners, v. SCHWAB, TWITTY & HANSER ARCHITECTURAL GROUP, INC., etc., et al., Respondents.

No. 77131.

Supreme Court of Florida.

March 5, 1992.

Rehearing Denied May 12, 1992.

Wilton L. Strickland of Ferrero, Middlebrooks & Strickland, P.A., Fort Lauderdale, for petitioner.

Donald J. Freeman of Bailey, Fishman, Freeman & Ferrin, West Palm Beach, and Louis R. McBane of Boose, Casey, Ciklin, McBane and O'Connell, West Palm Beach, for respondent.

KOGAN, Justice.

We have for review News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, 570 So.2d 1095 (Fla. 4th DCA 1990), in which the following question was certified as being of great public importance: ¹

Does a corporation act on behalf of a public agency when hired by a county to perform professional architectural services for the construction of a school so as to be subject to the provisions of Chapter 119 of the Florida Statutes?

570 So.2d at 1096. In the context of this case, we answer in the negative and approve the decision below.

Respondent, Schwab, Twitty & Hanser Architectural Group, Inc. (the architectural firm) is a private corporation that contracted with Palm Beach County School Board to provide architectural services associated with the construction of certain school building facilities to be built by the school board. The architectural firm was paid for its services by the school board pursuant to the contracts.

On April 12, 1990, a reporter for petitioner, News and Sun-Sentinel Co. requested, pursuant to chapter 119, Florida Statutes (1989), that he be allowed to inspect all files in the firm's possession that pertain to a number of school board projects. The firm refused the request, taking the position that it was not an agency within the definition of that term as set forth in section 119.011(2). News and Sun-Sentinel filed a petition for production of documents pursuant to chapter 119 with a demand for immediate hearing. After a hearing, the trial court ruled that the architectural firm was not an agency within the meaning of chapter 119 and therefore did not have to produce the records.

The district court affirmed. Reasoning that the architects did not participate in the school board's decision-making process, the court held that "the architectural firm was not an agency 'acting on behalf of' a public agency." 570 So.2d at 1096. However, the court certified the above question, noting that it was troubled by the wording of section 119.011(2) which provides:

"Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

Id. The district court's apprehension is understandable, in light of the fact that the statute provides no clear criteria for determining when a private entity is "acting on behalf of" a public agency.

The majority of district courts to address the issue of when a private entity under contract with a public agency falls within the purview of the Public Records Act has looked to a number of factors which indicate a significant level of involvement by the public agency. See, e.g., Sarasota Herald-Tribune Co. v. Community Health Corp., Inc., 582 So.2d 730 (Fla.2d DCA 1991); Fox v. News-Press Publishing Co., Inc., 545 So.2d 941 (Fla.2d DCA 1989); Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So.2d 343, (Fla. 3d DCA 1983); Schwartzman v. Merritt Island, 352 So.2d 1230 (Fla. 4th DCA 1977), cert. denied, 358 So.2d 132 (Fla.1978). However, rather than relying on any one of these factors, the courts generally have made the determination based on the "totality of factors." See Sarasota Herald-Tribune, 582 So.2d at 733; Fox, 545 So.2d at 943; Schwartzman, 352 So.2d at 1232. The factors considered include, but are not limited to: 1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly owned property; 4) whether services contracted for are an integral part of the public agency's chosen decision-making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency's involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency; 8) whether the public agency has a substantial financial interest in the private entity; and 9) for who's benefit the private entity is functioning. See, e.g., Sarasota Herald-Tribune, 582 So.2d at 733; Fox, 545 So.2d at 943; Parsons & Whittemore, 429 So.2d at 345-46; Schwartzman, 352 So.2d at 1232.

As noted above, the term "agency," as used in Florida's Public Records Act, is defined broadly to include private entities "acting on behalf of any public agency." Sec. 119.011(2). This broad definition serves to ensure that a public agency cannot avoid disclosure under the Act by contractually delegating to a private entity that which otherwise would be an agency responsibility. See Parsons & Whittemore, 429 So.2d at 346; Byron, Harless, Schaffer, Reid & Assocs. v. State ex rel. Schellenberg, 360 So.2d 83 (Fla. 1st DCA 1978), quashed on other grounds, 379 So.2d 633 (Fla.1980).

We reject petitioners' contention that a private corporation acts "on behalf of" a public agency merely by entering into a contract to provide professional services to the agency. See Parsons & Whittemore, 429 So.2d at 346 (engineering and construction firms that contracted with county to construct, manage and operate solid waste facility did not act "on behalf of" county merely by entering into business contracts). We find the "totality of factors" test utilized by the district courts a sound approach for determining whether a private entity is subject to the Public Records Act. This approach provides guidance for making such a determination, yet recognizes the unique circumstances present in each case. Accordingly, we adopt the totality of factors approach. However, we note that because the relevant factors and circumstances vary from case to case, the above-listed factors are not intended to be all-inclusive.

The district court below appears to have considered only the fact that "the architects did not participate in the school district's process to decide whether schools should be built." 570 So.2d at 1095-96. The trial court, on the other hand, expressly considered and based its determination on the factors set forth in Parsons & Whittemore and Schwartzman. The trial court made the following findings relative to those factors:

b) That the providing of educational facilities by the School Board is a governmental function but that the architectural services for designing is not a governmental function.

c) That the School Board's building program is funded by the government but that, the governmental entity, in this case the Palm Beach County School Board, does not regulate the architectural activity.

d) The School Board may generally say how it wants to approve the appearance of the buildings but that the architectural responsibility is a professional one and it is not a governmental function.

e) That the particular entity in question in this case, SCHWAB, TWITTY & HANSER ARCHITECTURAL GROUP, INC., has not been created by a governmental entity, i.e., the School Board, to perform a governmental function.

Our review of the following relevant factors supports the the determination that the architectural firm was not acting on behalf of the school board for purposes of the Public Records Act.

Creation: The school board clearly played no part in the creation of the architectural firm.

Funding: While the firm received public funds, the funds were given in consideration for professional services rendered. Therefore, the public funds received by the firm were no different than those received from any other client. See Sarasota Herald-Tribune, 582 So.2d at 734 (merely providing money to private entity in consideration for goods or services is not an important factor in analysis).

Regulation: The school board does not regulate or otherwise...