VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-14-03

June 9 , 2003

Ms. Susan D. Scott
Onancock Town Manager
Onancock, 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 phone conversation of March 24, 2003, your email of March 26, 2003, and information on the Virginia Department of Housing and Community Development's website about the Main Street Program.

Dear Ms. Scott:

You have asked whether the Onancock Business and Civic Association ("the Association") is a public body under the Virginia Freedom of Information Act (FOIA) for purposes of its involvement with the Main Street Program ("the Program"). You indicate that the Association is a private business organization that has been in existence for several years and whose membership is comprised of local businesses and citizens.

By way of background, the Virginia Department of Housing and Community Development administers the Program to assist localities in developing public and private efforts to revitalize downtown commercial areas. The purpose of the Program is to help localities reverse economic and physical decline in traditional downtown and neighborhood business districts. The Program encourages public and private partnership at the local level and offers several levels of participation. An affiliate membership is available to communities exploring downtown revitalization or those who do not yet meet the requirements to be designated as an official Main Street community. Affiliate membership is open to a local government or to a partnership of a local government and a private sector organization. It does not appear that a private organization is eligible to join without participation from the local government.¹

In the facts you present, the Association requested that the Onancock Town Council ("the Council") allow the Association to become an affiliate member of the Program. As mentioned above, a private organization like the Association is not entitled to apply without participation from the local government. Therefore, in order for the Association to join the Program, it was necessary for the Council to concur with the Association's participation. A resolution passed by the Council recognizes that the Association desires to participate, and resolves that the Association apply for affiliate membership. The resolution also indicates that the Onancock town manager would assist in submitting the application to the Program. The application requires the signature of a representative of the locality; however, based on the facts you presented, it appears as if the Association will be the active participant in the Program. The Council is involved only to the extent that the Association would not be eligible to apply to the program without partnering with the Council. You indicate that to date, the Association has not received any public funds relating to the Program. You ask if the Association is a public body for the limited purpose of membership in the Program, and whether its meetings and records must be open to the public.

Section 2.2-3701 of the Code of Virginia 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. (Emphasis added.) This office has previously opined that whether an entity administering a Main Street Program was a public body under FOIA turned on whether it was supported wholly or principally by public funds.² In the instant case, you indicate that the Association does not receive any public funding; instead, it has simply reached an agreement with the Council that allows it to participate in the Program. Therefore, the Association is not a public body under FOIA, even for the limited purpose of membership in the Program. If, in the future, the Association becomes wholly or principally supported by public funds, then its status as a public body may change.

You have also asked whether the records held by the Association relating to the Program would be public records under FOIA. Section 2.2.-3701 defines public records 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. (Emphasis added). Even though the Association is not a public body, it is possible that it might have records subject to public inspection and copying if it is acting as the Council's agent in the Program.

FOIA does not define the term "agent." Rules of statutory construction dictate that in the absence of a statutory definition, a term is considered to have its ordinary meaning, given the context in which it is used.³ The elements of a "principal-agent" relationship are well defined by the Supreme Court of Virginia. Therefore, the use of the word "agent" in the FOIA context should be given the same meaning as at common law. The Court has defined agency as "a fiduciary relationship resulting from one person's manifestation of consent to another person that the other shall act on his behalf and subject to his control, and the other person's manifestation of consent so to act."⁴ The Court has further reasoned that control is an important factor in determining whether an agency relationship exists -- it is necessary that an agent not only be subject to the principal's control, with regard to not only the results but also to the methods and details of doing the work. In addition, the work must be done by the agent for the principal's benefit. The law does not presume that an agency relationship exists; instead, the presumption is that a person is acting for himself, and not as an agent. Whether an agency relationship exists is largely a question of fact.⁵

Applying this established common law principle of agency to the facts relating to the Association's participation in the Program, it does not appear that the Association is acting as the Council's agent. The resolution passed by the Council does not indicate that the Council retained any control over the Association's participation in the Program once the application was made. It does not appear that the Association's interest in joining the Program is primarily to benefit the Council or local government. The Program anticipates cooperation between public and private interests, and it can be inferred that the Association is joining to benefit the private economic development of its membership. An agency relationship cannot be presumed, and the facts here do not demonstrate that a "principal-agent" relationship exists between the Council and the Association. Therefore, any documents that the Association maintains relating to the Program are not public records. It is important to note, however, that if the Council, its officers, or employees come into possession of documents relating to the Program or the Association's participation, these documents would be public records subject to FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ Information concerning the Main Street program can be found on the Virginia Department of Housing and Community Development's webpage at http://www.dhcd.state.va.us/cd/crd/msp/mspindex.htm (last accessed June 4, 2003).

² See Virginia Freedom of Information Advisory Opinion 36 (2001).

³ 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.

⁴ State Farm Mut. Auto. Ins. Co. v. Weisman, 247 Va. 199, 203, 441 S.E. 2d 16, 19 (Va. 1994).

⁵ See Drake v. Livesay, 231 Va. 117, 341 S.E. 2d 186 (Va. 1986), Reistroffer v. Person, 247 Va. 45, 439 S.E. 2d 376 (Va. 1994), State Farm Mut. Auto. Ins. Co. v. Weisman, 247 Va. 199, 441 S.E. 2d 16 (Va. 1994), The Texas Co. v. Zeigler, 177 Va. 557, 14 S.E. 2d 704 (Va. 1941), Wells v. Whittaker, 207 Va. 616, 151 S.E. 2d 422 (Va. 1966), Whitfield v. Whittaker Memorial Hospital, 237 Va. 489, 169 S.E. 2d 450 (Va. 1969).