Two nonprofit emergency service providers in rural Hill County, south of Fort Worth, have gone to court in a dispute over whether one of them is subject to the state's public records laws. The defining question of the case, which is now being heard in Hill County, amounts to this: Is an entity that relies on governmental support for the bulk of its business subject to the state’s Public Information Act?

CareFlite, the Metroplex-area emergency services outfit best known for its fleet of helicopters, won the contract to handle the county’s EMS service in August in a rancorous bidding war, primarily contested by incumbent Rural Hill EMS.

On Dec. 1, CareFlite CEO Jim Swartz, through law firm Kelly Hart & Hallman of Fort Worth, sent an open records request to Rural Hill, asking for a number of financial records and asserting that he considered Rural Hill a government entity. He heard nothing from Rural Hill.

In January, he asked a local judge to compel Rural Hill to comply. His lawsuit asks the court to step in and force Rural Hill to provide the records in question. Which is where the case sits.

At a hearing last week, a lawyer representing Rural Hill said his client was not subject to the open records act. He also said that Rural Hill had responded to the law firm, asking who it represented. The law firm said it had never received the correspondence, which was not sent with any kind of tracking, but that Rural Hill feels it is not a governmental body and did not feel compelled to respond anyway.

"If we were a governmental entity, like a school board, then a failure to respond to the letter requesting information would be a tough thing to overcome," said Michael Cosby, the Waco lawyer representing Rural Hill EMS. "Our defense is that we are not a government entity."

CareFlite will have a tough time making its case that Rural Hill EMS is a public entity, said Joe Larsen, a prominent First Amendment attorney in Houston “There is a strong argument to be made that they are not a governmental body,” said Larsen, a board member of the Freedom of Information Foundation of Texas who is with Sedgwick Detert Moran and Arnold law firm. He likened the contraction of EMS services to a county hiring a private company to build a road, which would not necessarily make the road company a public body.

But Larsen also noted a 2003 attorney general's letter ruling that an EMS provider in Travis County was a governmental body. “EMS services are traditionally provided by the government,” Larsen said. "Roads are not."

The CareFlite case is one more in a line of cases regarding what makes a private entity subject to the open records laws in Texas. A number of past state attorney general's opinions have found that some private entities are governmental bodies under the Texas Government Code, which defines the term “governmental body.”

One of the landmark cases on this issue in Texas is Kneeland v. NCAA. A lower court ruled the NCAA was a public body, holding that the money paid to the NCAA in “dues, assessments of television gross rights fees, and unreimbursed salaries and costs connected with championship events, were public funds.” That decision was reversed by the 5th U.S. Circuit Court of Appeals in 1988.

Perhaps closer in nature to the CareFlite case is a 1987 opinion in which Texas Attorney General Jim Mattox stated that a volunteer fire department is a public body because it relies on public money for general support.