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Town of Burlington v. HAD 1, concurring opinion, attorneys, footnotes.

ALEXANDER, J., concurring.

	[¶23]  I concur that the Freedom of Access Act should be broadly
construed to allow access to all documents relating to public contracts that
are within a public agency's possession and control, unless subject to an
exemption in the law.  However, I want to emphasize that by contracting
with a public agency, a private contractor does not open all of its private
documents, not shared with the public agency, to public access.  If the
Quorum compensation records are shared with or approved by HAD #1, they
are public records; but if they are private to Quorum and its employees, and
are not disclosed to HAD #1, they would not be subject to public disclosure
under the Freedom of Access Act, absent the stipulation noted in footnote
12 of the Court's opinion or the special provisions of section 10-A.
Attorney for plaintiff: Wayne R. Foote, Esq., (orally) Foote & Temple P O Box 1576 Bangor, ME 04402-1576 Attorneys for defendants: Michael A. Duddy, Esq., (orally) Kelly, Remmel & Zimmerman P O Box 597 Portland, ME 04112-0597
FOOTNOTES******************************** {1} . As originally enacted, the private and special law stated "[t]he hospital administrative district shall have any power or powers, privileges or authority exercised or capable of exercise by a public agency of this State." P. & S.L. 1967, ch. 58, § 1. Shortly after enactment, a 1967 amendment to the law, P. & S.L. 1967, ch. 211, repealed the prior law in its entirety, including the language authorizing HAD #1 to exercise the powers and privileges of a public agency; modified and added language; and re-enacted the enabling charter. The enabling legislation has been amended many times since then. {2} . Section 5701 states in relevant part: "The personal property of the residents and the real estate within the boundaries of a municipality, village or other quasi-municipal corporation may be taken to pay any debt due from the body corporate." {3} . The Van Buren Hospital District was established by the Legislature under an enabling act similar to that of HAD #1. P. & S.L. 1955, ch. 54. {4} . It is also a political subdivision for purposes of participation in public self-funded insurance pools. 30-A M.R.S.A. § 2252 (Supp. 2000). {5} . During trial the parties stipulated that if the court ordered HAD #1 to disclose the records, Quorum would comply with regard to the documents in its possession. {6} . The hospital parties did not argue that section 10-A violates the federal constitution. {7} . In addition to the definition of "public record," the definitional section of FOAA lists various boards, agencies and other entities whose proceedings must be open to the public. 1 M.R.S.A. § 402(2) (Supp. 2000). Although the list of these entities is not directly applicable to this case because this case concerns records, not proceedings, the list is illustrative of the breadth of organizations covered by FOAA. Subsection 402(2)(C) includes "[a]ny board, commission, agency or authority of any county, municipality, school district or any regional or other political or administrative subdivision." See Lewiston Daily Sun, Inc. v. City of Auburn, 544 A.2d 335, 336-38 (Me. 1988) (holding that a municipal committee comes within FOAA even though "committee" is not included in list in § 402(2)). {8} . In Memorial Hospital-West Volusia, Inc., the Florida Supreme Court relied upon the following facts in concluding that the hospital system functioned as a public entity: (1) the hospital's facilities were transferred to it by the West Volusia Hospital Authority which was created by the Florida Legislature; (2) the Authority had the power to construct a hospital; (3) it had the ability to issue bonds and levy taxes; (4) the Authority and a private hospital corporation established the entity at issue and the Authority leased the hospital facilities to the entity. Mem'l Hosp.-West Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373, 377-79 (Fla. 1999). {9} . In News & Observer Publishing, county commissioners created the Wake County Hospital Authority to establish a hospital. Later, the commissioners converted the Authority to the non-profit Wake County Hospital System and leased the hospital facilities to the System. In finding the System to be a public agency or subdivision, the North Carolina Court of Appeals relied upon the following: (1) upon dissolution, the System's assets would be transferred to the county; (2) the commissioners retained the right to approve the System's budget; (3) the county could audit the System; (4) the System could issue bonds; and (5) the lease of the facilities to the System was $1.00 per year. News & Observer Publ'g Co. v. Wake County Hosp. Sys., Inc., 284 S.E.2d 542, 544-45 (N.C. Ct. App. 1981). {10} . In Cleveland Newspapers, the hospital was created by state legislation which authorized the issuance of bonds; bonds had been issued, although the hospital was now self- supporting; the board of directors served without pay and a majority were named by city and county commissioners; annual audits and reports were submitted to the county court; and the hospital claimed governmental immunity in tort actions. Cleveland Newspapers, Inc. v. Bradley County Mem'l Hosp. Bd. of Dirs., 621 S.W.2d 763, 764 (Tenn. Ct. App. 1981). But see Memphis Publ'g Co. v. Shelby County Health Care Corp., 799 S.W.2d 225, 228-30 (Tenn. Ct. App. 1990) (holding hospital and health care corporation were not subject to disclosure law; distinguishing Bradley County Memorial Hospital on grounds that Bradley Hospital was a creature of state legislation and immune in tort actions). {11} . Some courts use additional factors such as the level of public funding, see Mem'l Hosp.-West, 729 So. 2d at 376 n.5, and status of the entity's employees, see Marks v. McKenzie High Sch. Fact-Finding Team, 878 P.2d 417, 423 (Ore. 1994). {12} . The Superior Court concluded that section 10-A reached Quorum and its employees even if they otherwise would not be considered a public agency or public officials. Early in this litigation Quorum contended that it was not required to disclose any documents in its possession because it is not a public agency and its employees are not public officials. We do not decide whether Quorum is required to disclose records because it stipulated at trial that it would provide access to any records in its possession that the court ordered HAD #1 to disclose.

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