Did a nonprofit volunteer fire department have to release records when it received public funds from a rural fire district?

Texas AG Opinion JM-821: Volunteer Fire Departments and Open Records

Plain-English summary

A Texas House committee chairman asked whether a nonprofit volunteer fire department became a governmental body under the Open Records Act when it received public money through a contract with a rural fire prevention district.

Cy-Fair Volunteer Fire Department received most of the Harris County Rural Fire Prevention District No. 9's tax collections, after administrative costs, to provide the district's fire, ambulance, and fire-prevention services. The contract required operating and capital budgets and contemplated continuing annual renewals.

Former section 2(1)(F) covered the part of an organization supported by or spending public funds. JM-821 distinguished ordinary vendors paid a fixed price for specific measurable goods or services from private organizations whose activities received general public support.

The opinion said the payment formula was not the only consideration. A common purpose, an agency-type relationship, public funding, budgeting control, and the overall closeness of the relationship could bring a private nonprofit within the Act.

Because the contract funded the department's general operations and enabled it to carry out all of the fire district's services, the department was a governmental body to the extent of that support. Its separately maintained public-fund accounting should have allowed it to identify the records within the Act's partial coverage.

Currency note

This opinion was issued in 1987 under the former Texas Open Records Act. Texas public-information law, fire-district statutes, nonprofit contracting practices, and judicial tests for publicly funded entities have since changed. Treat this page as historical context, not current disclosure advice. Verify current law and the actual contract before deciding whether a nonprofit's records are public.

Common questions

Did every nonprofit receiving government money become a governmental body?

No. The opinion distinguished general support and close public relationships from ordinary arm's-length purchases of specific measurable goods or services.

Did calling the agreement a contract for services control the result?

No. JM-821 looked at the entire relationship rather than the label or payment formula.

Why was Cy-Fair covered?

The fire district transferred tax money to enable the department to provide all district fire and ambulance services, required budget submissions, and used a continuing renewal structure. That was general operational support.

Were all records of the nonprofit automatically public?

No. Section 2(1)(F) covered the part, section, or portion supported by public funds. JM-821 limited Cy-Fair's duty to the extent it received those funds.

Why did volunteer fire departments receive special attention?

Fire protection was traditionally a governmental service, and Texas statutes recognized close affiliations between political subdivisions and volunteer departments through compensation and benefit programs.

Could a carefully written payment formula avoid the Act?

Not by itself. The opinion expressly rejected mechanical reliance on the form of payment and considered common objectives, control, and the overall relationship.

Background and statutory framework

Former article 6252-17a defined governmental body to include the publicly supported portion of any organization, corporation, commission, committee, institution, or agency. Private nonprofits could fall within that language.

A.H. Belo addressed whether money distributed through a college athletic conference was public money and concluded the funds had not vested in the public schools. JM-821 distinguished direct transfers of a fire district's tax revenue to the department.

The opinion also reviewed prior open-records decisions addressing a metropolitan promotion corporation and a private emergency medical provider. It disapproved mechanical use of the latter decision's payment test and emphasized the relationship as a whole.

Citations

Statutes and constitution:

• V.T.C.S. article 6252-17a, section 2(1)(F)
• V.T.C.S. article 8309h, section 1(2)
• V.T.C.S. article 6243e.3
• Texas Constitution article III, section 51-d

Cases:

• A.H. Belo Corporation v. Southern Methodist University, 734 S.W.2d 720 (Tex. App. - Dallas 1987)
• Kneeland v. National Collegiate Athletic Association, 650 F. Supp. 1047 (W.D. Tex. 1986)

Prior Attorney General material referenced: JM-116 (1983), JM-120 (1983), JM-154 (1984), JM-596 (1986), JM-748 (1987), and Open Records Decision Nos. 228, 302, and 343.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-821
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0821.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

November 17, 1987

Honorable Mike Toomey
Chairman
Judiciary Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-821

Re: Whether a volunteer fire department is subject to the Open Records Act, article 6252-17a, V.T.C.S. (RQ-1225)

Dear Representative Toomey:

You ask whether a volunteer fire department that receives public funds through a contract with a rural fire prevention district constitutes a "governmental body" under the Texas Open Records Act, article 6252-17a, V.T.C.S. Your concern focuses on the Cy-Fair Volunteer Fire Department, which you state is organized as a nonprofit corporation under Texas law. You indicate that the department receives public funds through a contract with the Harris County Rural Fire Prevention District No. 9 to perform fire fighting services in the district. At various times, members of the public have requested records from the district.

The Open Records Act applies to governmental bodies as defined in section 2 of the act. Section 2(1)(A) describes the state agencies covered by the act. Sections 2(1)(B)-(E) list specific types of local governing bodies or their subdivisions that are covered by the act. A volunteer fire department does not fall within any of these specific descriptions. Section 2(1)(F) provides that a "governmental body" also includes

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. (Emphasis added.)

Private nonprofit corporations can fall within this provision. See, e.g., Open Records Decision Nos. 302 (1982); 228 (1979).

The primary issue in determining whether certain private entities are "governmental bodies" under the act is whether they are supported in whole or in part by public funds or whether they expend public funds. See A.H. Belo Corporation v. Southern Methodist University, 734 S.W.2d 720, 723 (Tex. App. - Dallas 1987, writ pending); Attorney General Opinions JM-154 (1984); JM-116 (1983); Open Records Decision Nos. 343, 302 (1982); 228 (1979); see also Kneeland v. National Collegiate Athletic Association, 650 F. Supp. 1047, 1056 (W.D. Tex. 1986); cf. Attorney General Opinions JM-596 (1986); JM-120 (1983). In A. H. Belo Corporation v. Southern Methodist University, supra, the court held that certain private schools' athletic departments are not "governmental bodies" under the Open Records Act because they did not receive public funds. The member schools, state and private, retained a predetermined amount of funds from gate receipts and from broadcasting fees. The remaining funds were forwarded to the Southwest Athletic Conference (SWC) and other schools. The SWC retained a predetermined amount and distributed the rest to member schools. The court reasoned that the departments did not receive "public funds" within the meaning of section 2(1)(F) because the money distributed by the SWC did not constitute the "funds of the State of Texas or any governmental subdivision thereof." The court concluded that, because the funds never "vested" in any school, including a public school, the funds did not constitute "public funds." See 734 S.W.2d at 723.

The contract between the Cy-Fair Volunteer Fire Department and the Harris County Fire Prevention District No. 9, however, expressly involves a transfer to the department of the bulk of funds received by the district from its tax collections, less the district's administrative costs. In the A.H. Belo case, the court distinguished Open Records Decision No. 228 on the basis that it clearly involved public funds; funds transferred directly from a governmental body to the private entity in question. The case at hand is similar. Thus, this case is not one in which the governmental body acts only as a conduit for funds.

The receipt of public funds for the general support of the activities of a private organization brings that organization within the definition of a "governmental body." Open Records Decision No. 228. For example, in Open Records Decision No. 228, this office determined that a private, nonprofit corporation chartered to promote the interests of the Dallas-Fort Worth metropolitan area was a governmental body under the Open Records Act because of its contract with the city of Fort Worth. 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 as would be expected in a typical arms-length contract for services between a vendor and purchaser." Open Records Decision No. 228. The corporation was not simply a vendor or independent contractor who provided goods or services to a governmental body in an arms-length transaction. For these reasons, the decision determined that the contract funds were for the general support of the corporation rather than for specific measurable services. Consequently, the corporation was supported in part by public funds within the meaning of section 2(1)(F) of the Open Records Act. Id.; see also Attorney General Opinion JM-116 (1983); Open Records Decision No. 302 (1982).

In contrast, Open Records Decision No. 343 (1982) determined that a private, nonprofit corporation under contract with a hospital district to provide emergency medical service is not a "governmental body" because the applicable contract provided that the corporation should receive "each month a sum equal to the differences between cash receipts and approved operating expenditures of the ambulance service." The decision stated that this language imposed a definite obligation to make a "specific payment for specific measurable services" rather than to provide for general support. The decision did not indicate how the payment of monthly operating expenses through this formula constitutes payment for "specific measurable services" or how that payment can be distinguished from general monthly support. The "test" applied in Decision 343 is part of the test adopted and applied in Open Records Decision No. 228. The "test" was formulated in Decision No. 228, however, to help distinguish the "private" nonprofit corporation from a private vendor who sells goods or services to a governmental body. The "test" cannot be applied mechanically. The precise manner of funding is not the sole dispositive issue in determining whether an entity falls under the Open Records Act.

Other aspects of a contract or relationship involving the transfer of public funds between a private and public entity must be considered in determining whether a private entity is a "governmental body" under the Open Records Act. 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[1] between a private entity and a public entity will bring the private entity within the section 2(1)(F) definition of a "governmental body." See Open Records Decision Nos. 302, 228; see also Kneeland v. National Collegiate Athletic Association, supra (following Open Records Decision No. 228). For example, Open Records Decision No. 228 cited a provision of the contract which directed the private entity to continue to carry out the common objectives it held with the city. Structuring a contract that involves public funds to provide a formula to compute a fixed amount of money for a fixed period of time will not automatically prevent a private entity from constituting a "governmental body" under section 2(1)(F) of the Open Records Act. 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 Open Records Act. As indicated, the precise manner of funding is not the sole dispositive issue in determining whether an entity falls under the Open Records Act. For this reason, the determination in Open Records Decision No. 343 with regard to a "governmental body" under the act should not be relied upon.[2]

[1] It should be noted that the common purpose or agency-type relationship that will subject a "private" entity to the Open Records Act is not the equivalent of an agency relationship for purposes of tort liability. See generally Attorney General Opinion JM-748 (1987).

[2] Review of the contract at issue in Open Records Decision No. 343 reveals that the contract did not involve "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." See Open Records Decision No. 228 (1979). For example, the hospital district provided ambulances for the ambulance service and provided for the general monthly operating expenses of the service. The service could not make expenditures, including hiring personnel, without district approval.

Additionally, when volunteer fire departments contract with a political subdivision, considerations apply to them that ordinarily set them apart from private vendors of goods and services who typically deal with governmental bodies in arms-length transactions. Fire protection is one of the services traditionally provided by governmental bodies. See City of Coleman v. Rhone, 222 S.W.2d 646 (Tex. Civ. App. - Eastland 1949, writ ref'd). Although no statute expressly makes nonprofit volunteer fire departments subject to the Open Records Act or labels them governmental bodies for other purposes, several statutes recognize that they may have strong affiliations with public agencies. See, e.g., V.T.C.S. art. 8309h, § 1(2) (political subdivisions may bring volunteer firefighters within workers compensation coverage); art. 6243e.3 (political subdivision may opt to provide relief and retirement benefits to volunteer firefighters); see also Tex. Const. art. III, § 51-d (legislature may provide benefits for survivors of members of volunteer fire departments killed in the performance of "official duties"). These considerations make it more likely that a nonprofit volunteer fire department that enters into a contract with a public entity will fall within the Open Records Act. Whether or not a particular nonprofit volunteer fire department falls within the Open Records Act depends on the circumstances in each case, including the terms of the contract between the department and the public entity. See Schwartzman v. Merritt Island Volunteer Fire Department, 352 So. 2d 1230 (Fla. App. - 4th Dist. 1977), cert. denied, 358 So. 2d 132 (Fla. 1978) (cited in Open Records Decision No. 228 (1979)).

The contract between the Cy-Fair Volunteer Fire Department and the Harris County Rural Fire Prevention District No. 9 involves the general support of the activities of the department with public funds. The contract provides:

The Department will provide the emergency ambulance services, the fire prevention services, the fire fighting services in the geographic District and will not look to the District to provide any services whatsoever except for the providing of funds to enable the Department to carry on its duties and responsibilities. (Emphasis added.)

Thus, the department receives public funds to provide all of the district's needed services. Additionally, the contract involves the submission by the department to the district of one-year operating budgets and a three-year capital expenditure budget for planning purposes. The contract also provides for a form of continuing annual renewals. Consequently, the contract provides for the general support of the department for purposes of section 2(1)(F) of the Open Records Act.

As indicated, section 2(1)(F) covers only "the part, section, or portion" of corporations supported by public funds. See Open Records Decision No. 228. Accordingly, the department must comply with the Open Records Act to the extent that it receives public funds from the district. Because the contract requires the department to maintain a separate accounting of the expenditure of funds received from the district, this "partial" coverage should not require undue delay in responding to requests for information under the Open Records Act.

SUMMARY

The Cy-Fair Volunteer Fire Department, a nonprofit corporation, is a "governmental body" within the meaning of section 2(1)(F) of the Texas Open Records Act, article 6252-17a, V.T.C.S., to the extent that it is supported by public funds received pursuant to its contract with the Harris County Rural Fire Prevention District No. 9.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General