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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-09-02
August
30, 2002
Mr. Christopher
Thomas White
Petersburg, 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 faxed and hand-delivered
on August 6, 2002.
Dear Mr. White:
You have asked whether
you are entitled to inspect the financial records of Ironbridge
Acres, Inc. under the Virginia Freedom of Information Act
(FOIA).
By way of background,
you indicate that Ironbridge Acres is a wholly owned for-profit
subsidiary of the Hospital Authority of the City of Petersburg
("the Authority"). Minutes of meetings of the Authority show
that the Authority purchased all of the issued and outstanding
stock of Ironbridge Acres in 1987. You indicate that over
the next decade, the Authority made several loans to Ironbridge
Acres, and that in 1996, Ironbridge Acres sold a hospital
facility in Colonial Heights to the Authority. When you made
a request to the Authority to view the check registers of
Ironbridge Acres, the Authority responded that you were not
entitled to inspect those records because Ironbridge Acres
was not a public body and thus not subject to FOIA.
Subsection A of
§ 2.2-3704 of the Code of Virginia requires that [e]xcept
as otherwise specifically provided by law, all public records
shall be open to inspection or copying by any citizens of
the Commonwealth. The policy provision of FOIA at subsection
B of § 2.2-3700 provides that [t]he provisions of this
chapter shall be liberally construed to promote an increased
awareness by all persons of governmental activities... Any
exemption from public access to records or meetings shall
be narrowly construed and no record shall be withheld...unless
specifically made exempt pursuant to this chapter or other
specific provision of law.
Section 2.2-3701
provides defines a public body as any legislative body,
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. This
same section defines public records as 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.
The Authority clearly
falls under the definition of a public body under FOIA, as
the definition includes authorities. Furthermore, § 15.2-5302,
the section which authorizes the creation of a hospital authority
by a city, declares that such authorities are political subdivisions
of the Commonwealth. The analysis then must turn to whether
a wholly-owned subsidiary of a public body also falls under
this definition.
As stated above,
you indicated that the Authority owned all of the issued stock
of Ironbridge Acres. The definition of a public body includes
corporations...supported wholly or principally by public
funds. Construing this definition liberally, as is required
by FOIA, this would pull Ironbridge Acres, an otherwise private
corporation, under the definition of a public body. A public
body, such as the Authority, cannot dilute or change its identity
through the guise of a private corporation. As such, any records
of Ironbridge Acres would be subject to public inspection
and copying pursuant to FOIA.
The definition of
public records includes records prepared or owned by...a
public body or its officers. Because the Authority owns
Ironbridge Acres, it follows logically that the Authority
also owns its records and would be the custodian of those
records. Once a FOIA request for Ironbridge Acres records
has been made to the Authority, the Authority must respond
within five working days pursuant to subsection B of § 2.2-3704.
The only way that the Authority may withhold the records of
Ironbridge Acres is if they fall under a statutory exemption.
Such a denial must be in writing, identify the subject and
volume of the records being withheld, and cite the specific
Code section that authorizes the withholding.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
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