FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
9 , 2003
Onancock Town Manager
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 e-mail of March 26, 2003,
and information on the Virginia Department of Housing and
Community Development's website about the Main Street Program.
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.
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
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.
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.
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
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.
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
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
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).
See Virginia Freedom of Information Advisory Opinion 36 (2001).
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., §
State Farm Mut. Auto. Ins. Co. v. Weisman, 247 Va.
199, 203, 441 S.E. 2d 16, 19 (Va. 1994).
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).