However, as discussed below, the Sunshine Law applies to private entities created by law or by public agencies, and to private entities providing services to governmental agencies and acting on behalf of those agencies in the performance of their public duties.
a. Private Entities Created Pursuant to Law or by Public Agencies
The Supreme Court has stated that “[t]he Legislature intended to extend application of the ‘open meeting’ concept so as to bind every ‘board or commission’ of the state, or of any county or political subdivision over which [the Legislature] has dominion or control.” City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971).Accordingly, if a private entity has been created by law or by a public agency to perform a public function, the Sunshine Law applies. See National Council on Compensation Insurance v. Fee, 219 So. 3d 172, 180 (Fla. 1st DCA 2017), noting the application of the Sunshine Law to governmental bodies and to private entities created by a public entity. Accord AGO 00-08 (“a board or commission created by a public agency or entity is subject to section 286.011, Florida Statutes”).
For example, in AGO 04-44, the Attorney General advised that a nonprofit corporation established by state law to manage corrections work programs of the Department of Corrections, was subject to the Sunshine Law. And see AGOs 98-42 (association legislatively designated as the governing organization of athletics in Florida public schools), 97-17 (not-for-profit corporation created by a city redevelopment agency to assist in the implementation of its redevelopment plan), and 16-01 and 98-01 (board of trustees of an insurance trust fund created pursuant to collective bargaining agreement between a city and the employee union). Cf. s. 20.41(6) and (8), F.S., providing that area agencies on aging, described as “nongovernmental, independent, not-for-profit corporations” are “subject to [the Public Records Act], and, when considering any contracts requiring the expenditure of funds, are subject to ss. 286.011-286.012, relating to public meetings.”
b. Private Entities Providing Services to Public Agencies
A private corporation performing services for a public agency and receiving compensation for such services is not by virtue of this relationship alone subject to the Sunshine Law unless the public agency’s governmental or legislative functions have been delegated to it. McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980) (airlines are not by virtue of their lease with the aviation authority public representatives subject to the Sunshine Law). And see AGOs 98-47 (Sunshine Law does not apply to private nongovernmental organization when the organization counsels and advises private business concerns on their participation in a federal loan program made available through a city). 80-45 (the receipt of Medicare, Medicaid, government grants and loans, or similar funds by a private nonprofit hospital does not, standing alone, subject the hospital to the Sunshine Law); and Inf. Op. to Gaetz and Coley, December 17, 2009 (mere receipt of federal grant does not subject private economic development organization to Sunshine Law).However, although private entities are generally not subject to the Sunshine Law simply because they do business with public agencies, the Sunshine Law can apply if a public entity has delegated “the performance of its public purpose” to a private entity. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 382-383 (Fla. 1999). Accord National Council on Compensation Insurance v. Fee, 219 So. 3d 172, 180 (Fla. 1st DCA 2017); and Holifield v. Big Bend Cares, Inc., 326 So. 3d 739 (Fla. 1st DCA 2021).
For example, in Keesler v. Community Maritime Park Associates, Inc., 32 So. 3d 659, 660 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1289 (Fla. 2010), the court deemed it “undisputed” that a not-for-profit corporation charged by the City of Pensacola with overseeing the development of public waterfront property “is subject to the requirements of the Sunshine Law.”
Similarly, the Attorney General’s Office has found meetings of the following entities to be subject to the Sunshine Law: Family Services Coalition, Inc., board of directors, performing services for the Department of Children and Families which services would normally be performed by the department, AGO 00-03; Astronauts Memorial Foundation when performing duties funded under the General Appropriations Act, AGO 96-43; nonprofit organization designated by county to fulfill role of county’s dissolved cultural affairs council, AGO 98-49; nonprofit corporation specifically created to contract with county for operation of a public golf course on county property acquired by public funds, AGO 02-53; downtown redevelopment task force which, although not appointed by city commission, stood in place of the city commission when considering downtown improvement issues, AGO 85-55; and a private nonprofit corporation, if the county accepts the corporation’s offer to review, recodify, and prepare draft amendments to the county zoning code, AGO 83-95. Cf. Inf. Op. to Bedell, December 28, 2005 (private nonprofit organization which entered into an agreement with a city to operate a theater, received city funding in the form of a loan for this purpose, and leased property from the city, should comply with the Sunshine Law when holding discussions or making decisions regarding the theater).
More recently, the First District determined a national insurance rating organization with statutory responsibility to file proposals for changes in Florida rates was not subject to the Sunshine Law. The court determined that the state insurance agency retained the responsibility to approve or disapprove rates and “did not delegate any authority to carry out an agency function required to be performed in the sunshine.” National Council on Compensation Insurance v. Fee, 219 So. 3d 172, 180 (Fla. 1st DCA 2017). See also Holifield v. Big Bend Cares, Inc., 326 So. 3d 739 (Fla. 1st DCA 2021) (private entity that entered into a contract with a state agency to perform certain services was not subject to the Sunshine Law because the public entity did not delegate the performance of its public purpose to the private corporation).
c. Application of the Sunshine Law to specific private entities
(1) Direct-Support Organizations
In AGO 05-27, after reviewing the responsibilities of a nonprofit corporation created pursuant to statute as a direct-support organization and the organization’s relationship to the public agency, the Attorney General’s Office concluded that the organization was subject to the Sunshine Law. See also Inf. Op. to Chiumento, June 27, 1990 (Sunshine Law applies to school district direct-support organizations created pursuant to statute; although the direct-support organizations “constitute private nonprofit corporations, they seek to assist the district school board in carrying out its functions of meeting the educational needs of the students in the county”). And see AGOs 92-53 (John and Mable Ringling Museum of Art Foundation, Inc., established pursuant to statute as a not-for-profit corporation to assist the museum in carrying out its functions subject to Sunshine Law), and 11-01 (Sunshine Law applies to Biscayne Park Foundation, Inc., created as a nonprofit foundation to act as an instrumentality on behalf of the Village of Biscayne Park and intended to enhance the Village’s opportunities to raise monies through special events, sponsorships, donations, and grants for the Village).The Legislature has specifically exempted portions of meetings of some direct-support organizations. For example, any portion of a meeting of the board of directors of a university direct-support organization, or of the executive committee or other committee of the board, at which any proposal seeking research funding from the organization or a plan or program for either initiating or supporting research is discussed is exempt from s. 286.011, F.S. Section 1004.28(5) (c), F.S. See also s. 292.055(9), F.S. (portions of meetings of Department of Veterans’ Affairs direct support organization during which the identity of a donor or potential donor who wishes to remain anonymous is discussed are exempt).
