FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Murphy's College Books
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 correspondence of May 12, 2003 and May 19, 2003.
have asked whether Barnes & Noble Booksellers is subject
to the Virginia Freedom of Information Act (FOIA), to the
extent that it has contracted with George Mason University
("the University"), a public institution of higher
education, to mange the University's on-campus bookstore.
indicate that in June of 1999, Barnes & Noble entered
into a contract to manage the University bookstore. The bookstore
continues to be called the "George Mason University Bookstore,"
and is located on the campus of the University. You state
that according to the terms of the contract, a minimum of
$1 million annually will be returned to the University from
sales in the bookstore. You indicate that the contract also
states that Barnes & Noble works for the University. You
state that the University notified its instructors to send
their textbook selections for each semester directly to the
that you operate an off-campus bookstore, not affiliated with
the University, that serves the University community. In order
for you to know which textbooks to stock and have available
for sale each semester, you access records of the instructors'
textbook selections. The University instructed you to direct
all requests for copies of the textbook selections to University
Services. You indicate that on two different occasions you
requested the selections from University Services, but did
not receive all of the requested records. Specifically, four
instructors whose selections you did not receive indicated
to you that they had submitted their textbook selections directly
to the University bookstore, as instructed. Upon notifying
the University that you had not received all of the records
you requested, your contact in University Services notified
the manager of the University bookstore, and a nine-inch stack
of records not previously received was produced. You indicate
that the University's position regarding this situation is
that it did not violate FOIA because the University bookstore,
under the management of Barnes & Noble, did not give all
of the records to the University. Furthermore, the University
asserts that Barnes & Noble is an independent contractor
not under the control of the University and thus not subject
to FOIA. You ask if Barnes & Noble is acting as an agent
for the University, and is therefore subject to FOIA.
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
and other organizations,
corporations or agencies in the Commonwealth supported wholly
or principally by public funds. Barnes & Noble, a
large, private corporation, does not fall under this definition
of a public body because it is not supported wholly or principally
by public funds. However, the definition of a public record
includes all writings and recordings
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.) In the instant case,
the University is not mandated by law to operate a bookstore
for its students. Nonetheless, the University has decided
that this is an auxiliary service that it would like to offer,
but has delegated the operation and management of the bookstore
to Barnes & Noble. FOIA does not define the term "agent,"
so in order to determine if an entity is acting as an agent
of a public body, the Virginia Freedom of Information Advisory
Council has previously opined that one must examine the elements
of the common law "principal-agent" relationship.1
Court of Virginia 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."2 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.3 If the terms of the contract
and the nature of the relationship between the University
and Barnes & Noble indicates that the University maintains
control of decisions relating to the operation of the University
bookstore, then Barnes & Noble would be acting as an agent
for the University.
it is important to note that if Barnes & Noble is acting
as an agent of the University, it is not a public body itself,
and is therefore not required to respond to FOIA requests.
Subsection A of § 2.2-3704 states that all public
records shall be open to inspection and copying
the regular office hours of the custodian of such records.
The Freedom of Information Advisory Council has previously
opined that a public body can be the custodian in a broader
sense than just having physical possession of a record.4 To
the extent that a private entity creates or maintains records
as an agent for a public body, the public body will remain
the legal custodian of those records. The appropriate entity
to ask for records is the principal public body -- in this
case the University -- and not the agent, because any records
generated by Barnes & Noble relating to the University
bookstore are created in furtherance of its contractually
obligated duties from the University.5 Furthermore, in a "principal-agent"
relationship, the principal is generally liable for the actions
of the agent. The burden would be on the University to ensure
that compliance with FOIA continues when it chooses to delegate
responsibility for management of the University bookstore.
analysis does not end even if it appears that Barnes &
Noble is acting more like an independent contractor than an
agent and the University maintains little or no control over
the methods and details of running the University bookstore.
The records at issue here -- the textbooks selected by instructors
for their courses -- relate to the core public function of
the University in providing an educational curriculum to students
in the Commonwealth, and not just to running a bookstore.
Any action of a public body to work with agents or independent
contractors should avoid frustrating the purpose of FOIA.
Barnes & Noble is likely not the only entity that maintains
a list of the University's textbook selections. It would seem
that the University administration, each academic department,
or at the very least each instructor, would have records in
his possession indicating the textbooks selected for a given
semester. When you make a request for textbook selections,
you might consider asking not only for the official textbook
selection forms, but also any records maintained by the University
indicating each instructor's textbook selection for the semester.
To ease the burden of responding to such requests, the University
might find it necessary to include a clause in its contract
with Barnes & Noble requiring a copy of all textbook
selections to be made available to the University, or set
up a system whereby instructors submit their selections both
to Barnes & Noble and a central point in the University
administration, such as University Services.
all records held by Barnes & Noble relating to the management
of the University bookstore are subject to FOIA if Barnes
& Noble is acting as an agent of the University. The question
of agency is a question of fact, and must be determined by
looking at the terms of the contract between the University
and Barnes & Noble.6 However, if Barnes & Noble is
an agent, the University remains the legal, if not the physical,
custodian of the records, and the University is the appropriate
entity from whom to request the records. If Barnes & Noble
is acting as an independent contractor and not an agent, records
of textbook selections by instructors clearly relate to the
public business of the University. The public policy of FOIA
at § 2.2-3700 states that the General Assembly enacted
FOIA to ensure the people of the Commonwealth ready access
to public records. The University may not frustrate this
policy of ready access to records relating to the transaction
of public business by contracting with an independent contractor
to operate the University bookstore and claiming that such
records are out of its reach.
Thank you for contacting this office. I hope that I have been
See Virginia Freedom of Information
Advisory Opinion 14 (2003).
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).
See Virginia Freedom of Information Advisory Opinion 37 (2001).
To the extent that this opinion
is inconsistent with Virginia Freedom of Information Advisory
Opinion 41 (2001), that opinion is overruled.
The Virginia Freedom of Information
Advisory Council did not have a copy of the contract between
the University and Barnes & Noble to review, so a definitive
factual determination as to whether or not Barnes & Noble
is acting as an agent or an independent contractor cannot