VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-34-01

July 24, 2001

Mr. J. David Griffin
Winchester, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence of May 21, 2001, and information concerning the New Market Financial Control Board acquired from the attorney of the Town of New Market.

Dear Mr. Griffin:

You have asked a series of questions concerning the Virginia Freedom of Information Act (FOIA). Your first three questions relate to the application of FOIA to the New Market Financial Control Board ("Control Board"), which was established to control the finances of the town's volunteer fire company. Your fourth question concerns access to documents used by the Town Council's ("Council") finance committee to prepare a budget proposal for the full Council's review.

You advised by way of background that the town's volunteer fire company was experiencing financial difficulties. To help resolve the fire company's financial difficulties, the fire company and the bank (the mortgage holder of the fire company's deed of trust) agreed to the establishment of the Control Board to help manage the fire company's finances, and this agreement was subsequently approved by the Council. The agreement created a six-person board, consisting of a member of the Council, a member of the county board of supervisors, a member of the fire company, and three citizens. The agreement requires that the Control Board meet at least monthly, keep minutes of its meetings, make reports to the Council and to the County Board of Supervisors, develop an annual budget, and oversee paving of the fire company's parking lot. Furthermore, the agreement gives the town treasurer the responsibility of maintaining the fire company's financial records, although a fire company representative still signs the checks. In order to spend more than $250, the fire company must seek approval of the Control Board.

First, you ask whether meetings of the Control Board are subject to FOIA. The answer to this question hinges on whether the Control Board or the volunteer fire company is a public body as defined in FOIA. Section 2.1-341 defines a public body as any legislative body; any authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. It shall include any committee or subcommittee of the public body created to perform delegated functions of the public body or to advise the public body.

Based upon the agreement creating the Control Board, it does not appear to be a public body. The facts do not indicate that it is supported wholly or principally by public funds, nor do the facts indicate that it could be characterized as a subcommittee of the Council because it is not performing a delegated function or advising the Council. At most, it appears that the Control Board acts on its own to control the finances of the fire company, and updates the Council as to its activities.

Furthermore, the volunteer fire company does not appear to be a public body. Pursuant to § 27-8.1, a fire company is a volunteer fire-fighting organization comprised of a group of not less than 20 individuals who form themselves into a company for extinguishing fires. Unless such a volunteer group is supported wholly or principally by public funds, it would not constitute a public body. Based upon the facts presented, it appears that the fire company receives some money from the Council, but that the Council is not the primary source of funds. Therefore, because neither the Control Board nor the volunteer fire company appears to fit within the definition of a public body, the meetings of the Control Board are not subject to FOIA, and are thus not required to be open to the public.

Second, you ask whether minutes of the Control Board meetings are public documents that must be kept by the Council. FOIA defines a public record at § 2.1-341 to include all writings and recordings...prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Based upon the response to your first question -- the Control Board is not a public body -- FOIA does not require that the minutes of its meetings be open for inspection by the public. Furthermore, there is no requirement that the Council maintain possession of such records because the Control Board is not a committee of the Council. However, should a copy of the minutes of Control Board meetings come into the possession of the town council, such as when the Control Board makes a report to the town council concerning its activities, then such minutes would become public records of the Council, and would be subject to FOIA.

Third, you ask whether the town treasurer may withhold from public access the fire company's financial records in its possession. Subdivision A. 2. of § 2.1-342.01 exempts [s]tate income, business, and estate tax returns, personal property tax returns, scholastic and confidential records held pursuant to § 58.1-3. Subsection A of § 58.1-3 requires that the treasurer, or any other state or local tax or revenue officer or employee, or any former officer or employee of any of the aforementioned offices shall not divulge any information acquired by him in the performance of his duties with respect to the transactions, property, including personal property, income or business of any person, firm or corporation. The financial records of the fire company, maintained by the treasurer in the performance of his duties, would fall under this provision, and thus may not be released.

Your final question does not involve the fire company, but instead relates to documents in the possession of the Council's finance committee. You indicate that a reporter whom you represent was provided with a copy of the draft budget prepared by the finance committee. However, the committee declined to provide him with copies of supporting documents that it used to create the draft. The reporter was told that he would be able to obtain the supporting documents when they were provided to the full Council for consideration of the budget. You allege that the reporter was told that if he wished to obtain documents presented to an operating committee, in advance of the documents being presented to the full Council, the request must be made in writing and the committee may take up to 10 days to respond.

Initially, the reporter was told he could only access the supporting documents when they were provided to the full Council. As stated in response to your first questions, a public record is defined as all writings...in the possession of a public body or its officers. A public body includes any committee or subcommittee of the public body created to perform delegated functions of the public body or to advise the public body. This committee is clearly a public body, because one function of the Council is to create a budget. Therefore, any documents in the possession of the committee are public records that must be disclosed unless subject to an exemption. Subsection B of § 2.1-342 requires that the custodian of the requested records shall respond to the request promptly, but in all cases within five working days. If a public body finds that it is practically impossible to respond within these five days, subdivision B. 4. of § 2.1-342 allows a public body to notify the requestor in writing of the conditions that make a response practically impossible. The public body will then have seven additional working days in which to respond to the request. Thus, a public body could have up to 12 working days to respond. It makes no difference that these records have not yet been provided to all of the members of the Council; the procedures set forth in FOIA for responding to records requests apply to records of public bodies, as well as their committees and subcommittees.

In addition to the question of the timing of a response to a request, your fourth question also raises the issue of whether a public body may require a request to be put in writing. FOIA does not include a requirement that a request be made in writing. Subsection B of § 2.1-342 only requires that a request for public records identify the requested records with reasonable specificity, and states that the request need not make reference to FOIA in order to invoke its protections. Construing FOIA liberally, as is required by § 2.1-340.1, a public body may ask that a request be put in writing; however, a public body may not require that a request be in writing, nor may it fail to respond to a request simply because it has not been reduced to writing.

Applying these procedures to the request for the supporting budget documents, the Council must respond within five working days to the request. One of the proper responses may be to ask for an additional seven working days if it is practically impossible to respond within five. The request for the documents need not be in writing, and it makes no difference that the requested documents have not yet been provided to the full Council.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director