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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 As originally enacted, the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P. & S.L. 1967, ch. 211, repealed the prior law in its entirety, including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.