Did you know that your non-profit organization has to allow anyone to attend your board and committee meetings and turn over copies of your minutes upon demand?
Or maybe you don’t.
Open meeting and freedom of information laws differ from state to state and determining exactly how much access you are required to allow people to have to your meetings and records can be very confusing.
Every state with open government or “sunshine” laws requires any governmental entity and political subdivision including county, town/village and school district, tax district, committees and controlling boards to comply with open meeting and freedom of information laws (FOIA). Often this includes quasi-governmental entities like public libraries.
When it comes to non-profit organizations, things get a little more murky. Many states require non-profits which perform services on the behalf of the state or county government like social service and welfare agencies to comply with these laws. Some require hospitals to comply, some states don’t.
States like South Carolina have very strict interpretations of how the term “receive support” are applied. According to one account, an informal organization with no bank account and barely receiving any support at all is subject to the law:
The Office of the South Carolina Attorney General has opined that an informal, unincorporated, group of individuals called the Charleston Harbor Estuary Citizen’s committee which had no bank account, received no direct monetary support and expended no funds received the requisite “public support” to be subject to the FOIA. The Committee did receive in-kind support from the South Carolina Sea Grant Consortium in the form of services from one employee and meeting space. Federal funds from EPA/NOAA were also used by the Sea Grant Consortium to pay for postage, printing, as well as transportation and accommodations for speakers at Committee meetings. The Office of Attorney General felt that “[t]hese expenditures of grant (i.e., public) funds on behalf of the Committee, while not expended by the Committee itself, do aid in the support of the committee.” Thus, it is clear that accepting even a small amount of public funding can make a nonprofit subject to FOIA
In other states, simply receiving funding that comprises a small part of your overall budget from a governmental entity doesn’t automatically require you to comply with Open Meeting and FOIA laws.
However, I found an interesting informal advisory rendered by the Florida Attorney General stating that even though they wouldn’t normally be subject to “sunshine” statues, because a non-profit had received a loan from the city, the residents had a vested interest in the decisions the non-profit made given the default terms of the loan and other related agreements.
In vague circumstances like this case, it may be wise to consult the state attorney general for their view on the situation.
To begin your research as to whether you are subject to FOIA and Open Meeting Laws in your state, you can consult the guide on the Reporters Committee for Freedom of the Press website. One of the helpful things about the guide is that it provides citations to relevant court cases that illustrate the degree what entities are subject to the laws. The South Carolina section cites “Weston v. Carolina Research and Development Foundation” which also appeared in the article I quoted above. In that case, the court found that if an organization receives any government funding whatsoever, it is subject to FOIA statues.
If you are subject to laws, you may want to pay close attention to whether you are allowed to discuss business over email, phone or video conferencing services like Skype, GoToMeeting, etc. This varies from state to state.
Another thing to be aware of is how many people constitute a meeting that is required to be open. Colorado, for example, says that two people of a state entity engaged in a discussion of public business must be an open meeting, even if more people are required to form a quorum to make a decision. (my emphasis)
Because a meeting is open to the public if only two members of any state board or commission, or if only three members of a local government board or commission attend, the absence of a quorum does not affect the public status of the meeting, although it may affect the business conducted at the meeting.
If you read further in that section, you will see that this law applies to discussions by any mode of communication including email, video conferencing, texts, phone, social media, instant messaging. According to the law, each of these discussions is a meeting that the public has to be allowed to observe and participate in. Though it only applies to government business, not how many fish you caught over the weekend or speculation about who your secret Santa is.
All states with open meeting laws provide for exceptions in which topics can be discussed in private. These exceptions are fairly narrowly defined so you can’t simply declare the meeting will go into executive sessions simply because you don’t want people to learn of embarrassing developments.