Government Function Test Reaffirmed: RSA 91-A Applies Beyond Government-Owned Nonprofits to Hybrid Entities

Introduction

In Ortolano v. City of Nashua, 2025 N.H. 23 (N.H. May 29, 2025), the Supreme Court of New Hampshire clarified the reach of the State’s Right-to-Know Law, RSA chapter 91-A, when government uses hybrid corporate forms to conduct public business. The dispute concerns records related to a municipally initiated performing arts center in Nashua. To facilitate financing and access to federal tax credits, the City created a set of affiliated entities, including a for-profit corporation, NPAC Corp. (NPAC), wholly owned by a City-owned nonprofit, 201 Main Street Real Estate Corporation (201 Real Estate).

Laurie Ortolano requested “all NPAC public records” relating to the performing arts center. NPAC denied the request, asserting it is a private corporation not subject to RSA 91-A. Ortolano sued NPAC and the City to compel disclosure. The Superior Court dismissed, concluding NPAC was outside the statute’s definition of “public body” and finding no independent claim stated against the City; it also denied Ortolano’s motion to amend. Ortolano appealed.

The Supreme Court affirmed in part, vacated in part, and remanded. Most significantly, it held that the 2008 amendment to RSA 91-A:1-a, VI(e)—which explicitly sweeps in government-owned 501(c)(3) nonprofits—did not abrogate the preexisting “government function” test for determining whether other entities, including for-profit corporations related to government, are “public bodies” subject to the Right-to-Know Law. The Court sent the case back for the trial court to apply that test to NPAC in the first instance.

Parties: Laurie Ortolano (plaintiff, self-represented) vs. City of Nashua and NPAC Corp.
Court: Supreme Court of New Hampshire
Core issues: Whether NPAC is a “public body” subject to RSA 91-A; whether the plaintiff stated a claim against the City; and whether the trial court erred in denying leave to amend.

Summary of the Opinion

The Supreme Court:

Affirmed dismissal of the claims against the City. The complaint did not allege an independent Right-to-Know claim against the City, nor did it contain a prayer for relief for City-specific records. The relief sought against the City was derivative of NPAC’s status.
Vacated dismissal of the claims against NPAC and remanded. The trial court erred by treating RSA 91-A:1-a, VI(e) as exclusive and failing to apply the “government function” test to determine if NPAC is a “public body.”
Affirmed denial of the motion to amend. Although the plaintiff said she sought to add constitutional claims under Part I, Article 8, her proposed amended complaint did not actually plead such claims and did not cure the pleading defects.

In short, the Court reaffirmed that the “government function” test remains viable post-2008 and must be used to assess Right-to-Know coverage of entities not expressly included in the statute’s definitional list, including government-related for-profit corporations like NPAC.

Analysis

Precedents Cited

The Court situates its decision within the broader trajectory of New Hampshire Right-to-Know jurisprudence:

Professional Firefighters of N.H. v. Local Government Center (Professional Firefighters II), 159 N.H. 699 (2010): The key modern precedent for the “government function” test. There, the Court treated entities (a tax-exempt LLC and a tax-exempt corporation) created and controlled by public entities to provide statutorily recognized services as “public bodies” because they conducted the public’s business. The analysis focused on structure, function, and the entity’s relationship with government.
Bradbury v. Shaw, 116 N.H. 388 (1976) (superseded by statute on other grounds): An early case using the “government function” approach to determine whether an entity was subject to public disclosure obligations.
Martin v. City of Rochester, 173 N.H. 378 (2020): The Court applied the plain text of RSA 91-A to find that a “technical review group” was a public body; notably, it did not repudiate the “government function” test and cited Bradbury approvingly, signaling the test’s continued vitality.
ACLU of N.H. v. N.H. Division of State Police, 176 N.H. 302 (2023): Reaffirmed ordinary statutory construction principles in Right-to-Know cases, including reading the statute as a whole and interpreting it to maximize public access consistent with constitutional and statutory aims.
Hynes v. N.H. Democratic Party, 175 N.H. 781 (2023); Granite State Trade School v. N.H. Mechanical Licensing Bd., 175 N.H. 708 (2023): Clarify motion-to-dismiss standards—assume well-pleaded facts, not legal conclusions; test whether allegations could permit recovery.
In re Guardianship of Raymond B., 163 N.H. 502 (2012): Standard for reviewing dismissals—whether allegations could permit the relief sought.
Sanguedolce v. Wolfe, 164 N.H. 644 (2013): Standards for motions to amend—liberally allowed to prevent injustice unless surprise, new cause of action, substantially different evidence, or futility; reviewed for unsustainable exercise of discretion.

The Court underscores that nothing in the 2008 statutory amendment (RSA 91-A:1-a, VI(e)) displaced these precedents. Instead, the amendment added a category of unquestionably covered entities—government-owned 501(c)(3)’s—without foreclosing coverage of other government-related entities that perform public functions.

Legal Reasoning

The Court’s analysis unfolds in three steps:

Statutory context and purpose. RSA chapter 91-A is construed to promote “the greatest possible public access to the actions, discussions and records of all public bodies.” The statute and Part I, Article 8 of the New Hampshire Constitution are read to avoid unreasonable restrictions on access. The Court applies ordinary tools of statutory construction: plain meaning, whole-statute reading, and fidelity to legislative text without adding or subtracting words.
VI(e) is additive, not exclusive. RSA 91-A:1-a, VI(e) explicitly includes in the definition of “public body” any 501(c)(3) corporation whose sole member is a political subdivision (e.g., a city). NPAC argued that because VI(e) covers only government-owned nonprofits, other corporate forms (like a government-owned for-profit) are categorically excluded. The Court rejects this as a flawed negative inference. The plain text “simply specifies another type of organization” that is covered; it does not state that all other forms are excluded. In other words, VI(e) is additive, not exhaustive.
The “government function” test remains controlling for entities outside VI(e). The Court reaffirms the pre-2008 “government function” test for entities “not easily characterized as either solely private or entirely public.” Under that test, courts examine an entity’s structure and function to assess its relationship to government and determine whether it is “conducting the public’s business.” Because NPAC is a for-profit corporation wholly owned by a City-owned nonprofit and formed to facilitate a municipally approved public project, the trial court must apply the government function test to decide whether NPAC is a “public body” subject to RSA 91-A.

Two ancillary holdings address pleading and amendment:

Claim against the City. The complaint did not plead an independent statutory claim against the City for City-held records, nor did it include a prayer for relief directed to City records. The only requested relief was to “order the City” to produce “public records held with the NPAC,” rendering the claim against the City derivative of NPAC’s status. Dismissal of the City was therefore proper.
Motion to amend. Although the plaintiff sought to add constitutional claims under Part I, Article 8, her proposed amended complaint did not actually allege those claims and merely reasserted RSA 91-A claims against NPAC. Because the amendment would not cure the pleading defects, denial was not an unsustainable exercise of discretion.

Impact

Ortolano has notable implications for public records law, municipal structuring, and litigation practice:

Scope of “public body” expanded in practice. The decision reaffirms that the Right-to-Know Law can reach beyond formally public agencies and expressly listed nonprofits to cover hybrid entities— including for-profit corporations—where they perform governmental functions or conduct public business. Government cannot automatically insulate records from disclosure by channeling public projects through private affiliates.
Municipal finance structures under scrutiny. Complex arrangements used to access federal tax incentives often involve creating nonprofits and for-profit subsidiaries that are closely tied to city projects. Post-Ortolano, courts will evaluate such entities’ structure, ownership, control, funding, and functional role to decide if they are “public bodies.” Municipalities and their affiliates should anticipate potential RSA 91-A compliance obligations.
Operational consequences for hybrid entities. If an entity is deemed a public body under the government function test, it must process records requests, maintain adequate records, and adopt compliance practices akin to traditional public bodies (e.g., retention, response timelines, exemptions analysis).
Pleading precision is essential. Plaintiffs should plead:
- Specific facts supporting the government function test when seeking records from quasi-public entities;
- Independent claims against a municipality for records in its “possession, custody, or control” (RSA 91-A:4, I), not merely derivative relief; and
- Any constitutional claims with clear allegations, rather than referencing them in motion captions alone.
Statutory interpretation approach reinforced. The Court’s refusal to infer exclusions from VI(e) signals its commitment to broad access and caution against restrictive negative implications in Right-to-Know cases.
Future litigation likely focuses on facts of control and function. On remand and in similar cases, the dispositive inquiry will be fact-intensive: who created the entity, who controls it, what functions it serves, how it is funded, and whether it is effectively performing the public’s business.

Complex Concepts Simplified

Right-to-Know Law (RSA ch. 91-A): New Hampshire’s open records and meetings law. It broadly grants the public access to governmental records and proceedings, interpreted to maximize transparency.
Public body vs. public agency: “Public body” (RSA 91-A:1-a, VI) typically refers to boards, commissions, committees, and certain corporations, while “public agency” (RSA 91-A:1-a, V) encompasses executive, legislative, and administrative departments and other governmental units. The definitions determine who must respond to requests.
Government function test: A judicial test used when an entity is neither purely public nor purely private. Courts examine the entity’s structure and function—creation by government, ownership, degree of governmental control, funding with public money, statutory role, and whether it performs tasks that are essentially governmental—to decide if it is “conducting the public’s business” and thus a “public body.”
RSA 91-A:1-a, VI(e): A 2008 amendment that explicitly includes certain government-owned nonprofits (sole-member, government-owned 501(c)(3)s) as “public bodies.” Ortolano clarifies that this is an additive category, not a ceiling on coverage.
Possession, custody, or control (RSA 91-A:4, I): The statute requires disclosure of records a public body or agency has in its possession, custody, or control. Even if a record is physically held by another entity, a public body may have to produce it if it controls access.
Vacate vs. reverse; remand: To “vacate” nullifies the lower court’s decision without substituting a different final judgment; “remand” sends the case back for further proceedings consistent with the appellate court’s instructions (here, to apply the government function test).
Unsustainable exercise of discretion: A deferential standard of review for decisions like motions to amend; the appellate court will not disturb the ruling unless it falls outside the range of reasonable choices given the facts and law.

Conclusion

Ortolano v. City of Nashua is a significant reaffirmation of transparency principles embedded in RSA chapter 91-A and Part I, Article 8 of the New Hampshire Constitution. The Supreme Court clarified that the 2008 expansion of the “public body” definition to capture government-owned nonprofits did not displace the long-standing “government function” test. Courts must still ask whether an entity—whatever its corporate form—is conducting the public’s business. If so, it may be subject to the Right-to-Know Law.

For municipalities and their affiliates, the message is clear: form does not trump function. Structuring public projects through nonprofits or for-profit subsidiaries will not automatically shield records from disclosure. For requesters and litigants, Ortolano underscores the importance of carefully pleading independent statutory claims against municipalities, articulating facts that support application of the government function test to affiliates, and ensuring proposed amendments actually add the claims they purport to add.

The immediate consequence is a remand for the trial court to apply the government function test to NPAC. The broader consequence is a reinforced commitment to open government: hybrid entities that help municipalities carry out public projects cannot avoid public accountability merely by virtue of their corporate status.