On November 5, 2021, the Vermont Supreme Court handed down its decision in McVeigh v. Vermont School Boards Association, 2021 VT 86, holding that “there is no general ‘functional-equivalency’ concept contained in the [Public Records Act].” The Court decided that the Vermont School Boards Association (“VSBA”) is not a “public agency” subject to the Vermont Public Records Act (“PRA”). SP&F attorney John Klesch served as co-counsel for the National School Boards Association for submission of its Amicus Curiae brief to the Court.

The plaintiff had requested emails between the VSBA, the Vermont Principal’s Association, and the Vermont Superintendents Association. The VSBA responded that it was a private nonprofit corporation, and, accordingly, not a “public agency” subject to the PRA. Plaintiff premised his PRA claim on the theory that the VSBA is the functional equivalent of a public agency and thus must be subject to the PRA.

The Court held that there is no general “functional-equivalency” concept applicable to the PRA. Instead, whether a non-governmental entity can be subject to the statute turns on whether the entity is an “instrumentality” – a term listed within the statute’s definition of “public agency” – of the state or a municipality. The Court said “the determination whether a particular entity is an ‘instrumentality’ must be made on a case-by-case basis.” The key determination is whether the entity has been “delegated responsibility for performing a uniquely governmental function.”

Although the VSBA is involved in aspects of public education, which is a fundamental governmental function, the Court reasoned that the VSBA does not provide public education but instead only provides services to member school boards. The Court thus held that the VSBA is not an instrumentality subject to the PRA because it has not been delegated responsibility for performing a uniquely governmental obligation. Going forward, the Court’s “instrumentality” analysis will serve as binding precedent for determining whether non-governmental entities are subject to the PRA.

While the Vermont Open Meeting Law (“OML”) was not discussed by the Court in its McVeigh decision, the case may have implications for that statute as well. The OML’s definition of “public body” includes an “instrumentality of the State or one or more of its political subdivisions.” Therefore, the Court’s holding in McVeigh as to what constitutes an “instrumentality” may guide resolution of OML disputes over whether a group is a “public body” subject to that statute.

The Supreme Court’s McVeigh opinion is available here.