FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Ms. Maureen Kelley
Executive Director, Waynesboro Downtown Development, Inc.
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 phone
conversation of July 20, 2001.
Dear Ms. Corum:
You have asked whether
organizations created by the Virginia Department of Housing
and Community Development to help revitalize downtown areas
are public bodies subject to the Virginia Freedom of Information
Act (FOIA). You indicate that the Department of Housing and
Community Development created the Virginia Main Street Community
Program to assist in this revitalization effort. Programs
are administered locally in cities and towns across the state,
and each program is a private, nonprofit organization that
works in conjunction with the locality in which it is located.
The sources of funding vary from program to program. You explain,
by way of example, that the program that you direct receives
100 percent of its operating budget from the City of Waynesboro.
You indicate that a program in another location receives less
than half of its operating budget from its locality, with
the remainder of its budget comprised of member dues, donations,
and money from other fundraising efforts. Your question turns
on how to determine if some, or all, of the Main Street Community
Programs are public bodies under FOIA.
of the Code of Virginia 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. (Emphasis added.) Whether the Main
Street Community programs fall under this definition depends
upon whether or not they are supported wholly or principally
by public funds. While it is clear that the program that
you direct would be a public body, because it is supported
wholly, or 100 percent, by public funds, it is less clear
what the statute means when it defines a public body as one
supported principally by public funds.
FOIA does not define
the word "principally." According to statutory construction
rules, in the absence of a statutory definition, a term is
considered to have its ordinary meaning, given the context
in which it is used.1 The policy of FOIA at § 2.1-340.1
dictates that [t]he provisions of the chapter shall be
liberally construed to promote an increased awareness by all
persons of governmental activity. These two principals
must be used to determine when an entity would be supported
principally by public funds.
In reviewing a similar
issue as the one presented here, the Attorney General of Virginia
found that the question of whether an entity is supported
principally by public funds is a factual one. The Attorney
General relied on the definition set forth in Webster's New
Collegiate Dictionary (1979) of "principal" as most important,
consequential, or influential. The opinion also noted
the Black's Law Dictionary (5th ed. 1979) defined "principal"
as chief; leading; most important or considerable; primary;
Reading the definition
of a public body, with the word "principally" being used in
conjunction with the word "wholly," it would appear that an
entity that was supported principally by public funds would
receive its main source of money for its operating budget
from government sources. Construing this in a liberal fashion,
as directed by the policy of FOIA, this means something less
than 100 percent, yet more than a simple majority of the money
in the budget. As a general rule, one could construe that
an entity that received at least two-thirds, or 66.6 percent,
of its operating budget from government sources would be supported
principally by public funds.
Despite this general
guideline, the question of whether an entity is supported
principally by public funds remains a question of fact, and
an entity that receives less than two-thirds of its funding
from government sources could still be considered a public
body. By way of example, consider an entity that receives
55 percent of its funding from a government source. If it
received the remaining 45 percent of its funding from one
single private source, then it would not appear to be principally
supported by public funds. Relying back on the definitions
of "principal" set forth in the Attorney General's opinion,
the government funds would not be the most important or primary
source of money in its operating budget. However, consider
how the outcome may change if the remaining 45 percent of
the funding consisted of small amounts of money from many
different sources. In this second scenario, the 55 percent
of the support from a government source might be the most
important or primary source of funds, if the funding from
each of the other sources only represented a small fraction
of the overall budget.
In conclusion, FOIA
does not define what it means for a public body to be supported
... principally by public funds. In applying ordinary
meaning of the word "principal," in light of the liberal construction
rule set forth in the policy of FOIA, the general guideline
that emerges is that an entity is supported principally by
public funds if it receives two-thirds of its funding from
a government source. However, this two-thirds standard is
merely a guideline, and not an absolute rule. An entity that
receives less than two-thirds of its funding from a government
source could still nonetheless qualify as a public body. The
question of whether an entity is supported principally by
public funds remains a question of fact, and one necessarily
determined on a case-by-case basis. One must examine the amount
of the public funding in totality with the amount of funding
from each other source in order to reach a conclusion.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
Commonwealth Department of Taxation v.
Orange-Madison Coop. Farm Service, 220 Va. 655, 261 S.E.
2d 532 (1980); 1991 Op. Atty. Gen. Va. 413; 1986-87 Op. Atty.
Gen. Va. 174; see generally Norman J. Singer, Statutes
and Statutory Construction, 6th ed., § 46:01.
Op. Atty. Gen. Va. 719.