March/April 2019 Issue
Also in this issue: Each Concert at a Public Park was a Separate Event for Purposes of Providing Notice of a Private Nuisance Claim Against a City | The FCC's Small Cell Order: The Down and Dirty
What Constitutes a Quasi-governmental Corporation Subject to Wisconsin Public Records Law?
Brian P. Goodman | 03.29.19
A recent Wisconsin Court of Appeals case held that the Kemper Center was not a quasi-governmental corporation subject to Wisconsin public records law. State ex rel. Flynn v. Kemper Center (Wis. Ct. App. 2019). In 1977, Kenosha County (the County) acquired Kemper Hall and the surrounding property (Kemper Park) through grants and charitable contributions. The County entered into a lease with the Kemper Center (a private non-profit corporation) whereby the Kemper Center would pay one dollar annually to the County in rent. The Kemper Center would be entitled to keep all revenue generated by Kemper Park, but would also be responsible for all the operational and maintenance costs relating to Kemper Park.
In late 2016, Annette Flynn, a caterer, submitted a public records request to the Kemper Center for, among other things, all documents pertaining to the status of Victoria’s Catering as the Kemper Center’s preferred caterer. The Kemper Center denied her request asserting that it was not a quasi-governmental corporation subject to Wisconsin public records law. Flynn sued.
The Court of Appeals reasoned that the Kemper Center was not a quasi-governmental corporation subject to the public records law after applying five factors: (1) whether the Kemper Center’s funding comes from predominately public or private sources; (2) whether the Kemper Center serves a public function; (3) whether the Kemper Center appears to the public to be a government entity; (4) the degree to which the Kemper Center is subject to government control; and (5) the amount of access governmental bodies have to the Kemper Center’s records.
The court’s reasoning was based primarily on its determination that the Kemper Center’s funding does not come primarily from public sources. The revenue that the Kemper Center generated through its lease with the County should not be imputed to the County. The County was merely serving as the Kemper Center’s landlord, and a landlord generally has no claim to revenue generated by a tenant. Additionally, while the County provided a substantial sum of money over the years to improve Kemper Park, this money is not paid directly to the Kemper Center. Instead, this money is spent to improve the County’s property. The County-provided funding is minor compared to the money the Kemper Center raises by renting out Kemper Park for private events.
The court also analyzed the four other factors. The court determined that the Kemper Center provides a function that is provided by both public and private actors, and thus this factor was inconclusive. The court also determined that the Kemper Center does not appear to the public to be a government entity because the relationship between the County and the Kemper Center is similar to a landlord-tenant relationship, meaning that the Kemper Center does not appear to be a government entity and the County does not have sufficient control over the Kemper Center to transform the Kemper Center into a quasi-governmental entity. Additionally, the fact that a County Board of Supervisors member served on the Kemper Center’s board of directors did not indicate governmental control because that member served on the Kemper Center’s board as a private citizen. Finally, the lease obligates the Kemper Center to make all documents pertaining to Kemper Park available to the County. This was the only factor that weighed in favor of the Kemper Center being a quasi-governmental corporation.
After weighing all the factors, the court concluded that the Kemper Center was not a quasi-governmental corporation and was not subject to the Wisconsin public records law. The court also explained that Ms. Flynn could make a public records request to the County in order to obtain records regarding the relationship between the County and the Kemper Center. In this way, the public interest in government transparency is still satisfied.
This case outlines the factors a court will apply when determining whether a private entity is a quasi-governmental corporation subject to the Wisconsin Public Records Law. A key takeaway is that a traditional landlord-tenant relationship with a public entity is not likely sufficient to subject a private entity to the public records law, even if the rent paid to the public entity is nominal.
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