Sunrise over V.A. Capitol.
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA


AO-18-03

July 7, 2003

Mr. Daniel L. Lurker
Via e-mail

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 e-mails of April 17, 2003, and May 12, 2003.

Dear Mr. Lurker:

You have asked a question about the application of the Virginia Freedom of Information Act (FOIA) to the student government organization of a state university, and whether a university is the custodian of records of the student government organization.

You indicate that you made a request for records from the student senate at George Mason University ("the University"), a state institution of higher education, but that the speaker of the student senate refused to supply the records. You subsequently directed the same request to the University itself. The legal affairs department responded that it agreed that the student senate was subject to FOIA because student fees funded it. However, legal affairs stated that it was not in possession of the student senate records because the student senate was an independent organization recognized by the University, but not a department within the University. You ask if the University is required to respond to your FOIA request for student senate records.

FOIA defines a public body as any legislative body, authority, board, bureau, commission, district or agency in 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.) The Office of the Attorney General of Virginia and The Virginia Freedom of Information Advisory Council have both previously opined that if a student government at a state institution of higher education is supported wholly or principally by public funds, such as by student fees, then it is a public body subject to the requirements of FOIA.1 As indicated in the University's response to your request, the student senate is supported by student fees, and is thus a public body under FOIA.

Subsection B of § 2.2-3704 of the Code of Virginia requires that [a]ny public body that is subject to [FOIA] and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, make one of four responses. The public body may provide the requested records, withhold the records if subject to an exemption, withhold the records in part and release in part if only a portion of the records are subject to an exemption, or respond that it is not practically possible to respond within five working days, in which case the public body will have seven additional working days in which to respond. If the public body is withholding the records in whole or in part, or responding that it is practically impossible to respond within five working days, the response must be in writing. Therefore, upon receipt of your initial request, FOIA would require the student senate to respond accordingly and a failure to do so would constitute a violation of the law.

While the student senate is a public body, by virtue of the fact that it receives public funding, it does not necessarily follow that it is a subset of the University, such as an academic department, nor does it follow that the University would be required to respond to a request for student senate records. One could argue that because the student senate is funded by the University, has a University faculty advisor, and is provided office and meeting space by the University, it is a part of the University as a whole. However, student government associations are student-run organizations. The Attorney General did not find that student organizations were subject to FOIA by virtue of the fact that they were associated with or somehow a subset of a University; instead, the Attorney General based its conclusion that a student organization was subject to FOIA because it was supported wholly or principally by public funds. This indicates that a student organization is an independent public body, separate from the University. Theoretically, if the University decided to discontinue funding to the student senate, it could continue to exist by establishing dues for its members or seeking other sources of funding. The student senate's existence as an organization does not hinge on the University. While the University and the student senate may be closely related and have many commonalties, the University would not technically be responsible for responding to a request for public records from the student senate.

The fault for failure to respond to your FOIA request lies with the student senate, and not with the University itself. Because the student senate appears to be a separate public body, the University is not technically the custodian of the student senate records, and thus not required by FOIA to produce the requested records. Certainly, because of the close relationship between the University administration and the student senate, it would have been possible and perhaps desirable for the University administration to forward your request to the student senate and advise the organization of its requirements under the law, instead of responding that the University was not the custodian of the records. However, the letter of the law would not require such a response.

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

Sincerely,

Maria J.K. Everett
Executive Director

1 See 1984-85 Op. Atty. Gen. Va. 431. See also Virginia Freedom of Information Advisory Opinion 23 (2001).

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