Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3389 _____________________________ EDWARD HOLIFIELD, Appellant, v. BIG BEND CARES, INC., Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge. August 9, 2021 M.K. THOMAS, J. Edward Holifield (Appellant) sued Big Bend Cares, Inc. (Appellee) for declaratory and injunctive relief, claiming Appellee is subject to and violated the open records and meetings requirements of chapters 119 and 286, Florida Statutes (2018). 1 Both parties moved for summary judgment, a hearing occurred, and, after finding Appellee is not subject to chapters 119 and 286, 1 Appellant’s complaint claimed four individual violations by Appellee. The first count alleged a violation of the public records requirements of chapter 119, while counts two, three, and four raised various claims that Appellee violated the public business requirements of chapter 286. the trial court entered summary judgment in Appellee’s favor. Finding no error, we affirm. Appellee is a private charitable organization, created independent of any government involvement, whose primary purpose involves the treatment of underserved HIV/AIDS patients in the Big Bend area. Portions of Appellee’s revenue comes from different federal programs being administered by the Florida Department of Health (DOH). The record shows that Appellee contracted with DOH to provide certain services for which DOH would reimburse Appellee for the rendered services covered by the contracts after Appellee submitted invoices to DOH. The record also establishes that Appellee received grant money from the City of Tallahassee covering a portion of the costs Appellee expended constructing its treatment facilities, but that Appellee owns and operates these facilities independent of the government. Appellant reasons that, under the circumstances, chapters 119 and 286 apply to Appellee, and that the trial court erred in holding otherwise. Whether the trial court erred in granting summary judgment in favor of Appellee is reviewed de novo. TLC Props., Inc. v. Dep’t of Transp., 292 So. 3d 10, 13 (Fla. 1st DCA 2020). Chapter 119 The first count of Appellant’s complaint claimed that Appellee violated the requirements of chapter 119 by refusing to provide records in its possession showing the dates, times, and places of any upcoming board meetings. Generally, if these records were deemed subject to chapter 119, Appellant would indeed have a right to inspect and copy them. See § 119.01, Fla. Stat. And despite Appellee’s unquestioned status as a private entity, it is possible that Appellee could generate and possess public records per chapter 119. This is so because an “agency” subject to the public records requirements of chapter 119 includes private entities “acting on behalf of any public agency.” News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Grp., Inc., 596 So. 2d 1029, 1031 (Fla. 1992) (quoting § 119.011(2), Fla. Stat.). There are two general instances where a private entity will be deemed to be acting on behalf of a public agency under chapter 119. 2 See B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17, 22 (Fla. 1st DCA 2008) (quoting Weekly Planet, Inc. v. Hillsborough Cty. Aviation Auth., 829 So. 2d 970, 974 (Fla. 2d DCA 2002)). First, where an agency has delegated a statutorily authorized function to the entity, no further analysis is required, and the entity will be deemed to be acting on behalf of the public agency. Id. Second, “when [an agency] contracts with a private entity for the provision of certain goods or services to facilitate the public agency’s performance of its duties,” the records may be public if the “‘totality of the factors’ indicates a significant level of involvement by the public agency.” 2 Id. A private entity does not act on behalf of a public agency merely by entering a contract to provide professional services to the agency. Schwab, 596 So. 2d at 1031. Appellant does not argue that this is an instance where a public agency has delegated any statutory function. Instead, Appellant agrees that this case involves a latter instance of an agency contracting with a private entity to facilitate the agency’s performance of its duties, as assessed in Schwab. Appellant also 2 Schwab provides a non-exhaustive list of nine factors which may be considered in making the assessment. The factors are as follows: 1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly owned property; 4) whether services contracted for are an integral part of the public agency’s chosen decision- making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency’s involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency; 8) whether the public agency has a substantial financial interest in the private entity; and 9) for who’s benefit the private entity is functioning. Schwab, 596 So. 2d at 1031. 3 does not dispute any of the facts on which the trial court’s ruling is based. Essentially, Appellant contends that the court misapplied the law to the facts in ruling that Appellee was entitled to a judgment as a private entity not subject to chapter 119. But, we disagree and find no error with the trial court’s determination that the totality of the circumstances support that Appellee was not acting on behalf of any public agency. As in Schwab, the public agency here did not delegate any decision-making authority to Appellee, and there is no evidence that the agency “regulate[d] or otherwise control[led]” Appellee’s “professional activity or judgment.” See id. at 1032. Additionally, even if Appellee received a slight measure of support from the City of Tallahassee related to its facilities, there is no dispute that the activities in question were being conducted on property owned by Appellee, or that Appellee was not created pursuant to any government action. The trial court also correctly noted that the amounts paid by DOH to Appellee were all amounts paid in consideration for professional services already rendered, which was also the case in Schwab. See id. (citing with approval Sarasota Herald–Tribune Co. v. Cmty. Health Corp., Inc., 582 So. 2d 730, 734 (Fla. 2d DCA 1991) (holding that merely providing money to private entity in consideration for goods or services is not an important factor in analysis)). Thus, we agree with the trial court that the undisputed record supports that Appellee was not acting on behalf of a public agency as explained in Schwab; therefore, we affirm the trial court’s granting summary judgment on count one of Appellant’s complaint. Chapter 286 We also affirm the trial court’s entry of summary judgment regarding counts two, three, and four, albeit for different reasons. The tipsy coachman rule provides: “[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” Malu v. Sec. Nat’l Ins. Co., 898 So. 2d 69, 73 (Fla. 2005) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)). The parties agreed, and the trial court concluded below, that the foregoing analysis applicable to chapter 119 also applies in determining whether the requirements of chapter 286 attach to 4 a private entity. In other words, the trial court held that, for a private entity to be subject to chapter 286, it must be established via a Schwab analysis that the entity is acting on behalf of an agency. We disagree. This Court has recognized that “[b]y its express terms, the Sunshine Law applies exclusively to governmental bodies and not to private entities.” Nat’l Council on Comp. Ins. v. Fee, 219 So. 3d 172, 177 (Fla. 1st DCA 2017). However, the Sunshine Law can apply if a public entity has delegated “the performance of its public purpose to a [private entity].” See Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373, 383 (Fla. 1999) (declining to “engraft” the “acting on behalf of” language to the Sunshine Law but explaining that a private entity may be subject to the Sunshine Law when a public entity has delegated its public purpose to the private entity); accord Fee, 219 So. 3d at 180 (recognizing that the Legislature extended the scope of the Sunshine Law to apply to licensed insurance rating services under certain circumstances); cf. Op. Att’y Gen. Fla. 1980-45 (1980) (explaining that a private hospital’s receipt of Medicare, Medicaid, government grants or loans does not, standing alone, subject the hospital to the Sunshine Law). The trial court erred in concluding that chapter 286 does not apply to Appellee because the entity was not acting on behalf of any agency. Applying the correct “delegation-of-function” test established by the Florida Supreme Court, the trial court’s grant of summary judgment on counts two, three, and four was the correct result. The final judgment of the trial court is AFFIRMED. ROWE, C.J., and NORDBY, J., concur. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Richard E. Johnson of the Law Offices of Richard E. Johnson, Tallahassee, for Appellant. Jason C. Taylor of The Krizner Group, Tallahassee, for Appellee. 6