FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
10 , 2004
WTKR NewsChannel 3
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-mail
of December 10, 2003.
have asked a question concerning the application of the Virginia
Freedom of Information Act (FOIA) to a charity organization
that receives public funds.
you indicate that the Peninsula SPCA1 is a charity
organization for income-tax purposes. However, according to
its most recent tax return, its principal source of funding
comes from contracts and grants from the Cities of Hampton
and Newport News, the County of York, and the Town of Poquoson.
Out of a total income of $1,481, 240, the SPCA receives $930,
666 from fees and contracts with local governments, which
is 63 percent of its total income.
indicate that the municipal contracts allow the SPCA to operate
as the regional animal-control authority. The contracts with
the SPCA provide for the salaries, vehicles, equipment and
training for the SPCA officers who are authorized to enforce
municipal codes. You state that the SPCA officers and staff
collect stray animals, license animals for the municipal governments,
collect fines, write summons and testify in court. In addition
to the money received directly through the government contracts
and grants, you also indicate that the SPCA collected nearly
$40,000 in animal-impoundment charges, a sum directly attributable
to acting as the animal control arm of the various localities.
state that in the past year, the city governments contracting
with the SPCA began to question the SPCA's financial practices.
As a result, Hampton and Newport News conducted an audit of
the SPCA and uncovered numerous fiscal problems. These problems
included use of SPCA funds for personal cellular phones, purchase
of options on vehicles, not specifically outfitted for SPCA
services, and the subsequent sale of these vehicles at low
rates to staff members, payment for two trucks for the SPCA
president, use of SPCA funds for maintenance on private vehicles,
and failure of the SPCA to pass on money collected as fines
to the appropriate government entities. You indicate that
in light of the financial questions, the SPCA has held several
board meetings to which the public was denied access. Because
you claim that the organization is substantially funded by
public funds and acts as an arm of the four local governments,
you ask if the SPCA's records and meetings should be open
to the public under FOIA.
policy of FOIA at subsection B of § 2.2-3700 of the Code
of Virginia states that by enacting FOIA, the General Assembly
ensures the people of the Commonwealth ready access to public
records in the custody of a public body or its officers or
employees, and free entry into meetings of public bodies wherein
the business of the people is being conducted. Furthermore,
this subsection states that the provisions of FOIA shall be
liberally construed to promote an increased awareness by all
persons of governmental activities and afford every opportunity
to citizens to witness the operations of government.
Pursuant to § 3.1-796.104, the governing body of each
county or city is required to appoint an animal control officer
who has the authority to enforce Chapter 27.4 (§ 3.1-796.66
et seq.) of Title 3.1 of the Code of Virginia relating to
comprehensive animal laws and local ordinances enacted pursuant
to that chapter. Towns may, but are not required to, appoint
an animal control officer. In the facts you have presented,
the SPCA has contracted with the four localities to act as
the animal-control officer for each locality.
2.2-7701 defines a public record 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).
The law contemplates that "public records" for purposes
of FOIA includes more than just records in the physical custody
of a public body, and also includes records held by an agent
of a public body. This office has previously reasoned the
physical possession of a record by a public body is not the
only criterion as to a whether a record is subject to FOIA.2
the SPCA is acting as an agent of the localities. The Cities
of Newport News and Hampton and the County of York are statutorily
mandated to have an animal-control officer, and have delegated
this function to the SPCA. While the Town of Poquoson is not
required to have such an officer, it is permitted to do so
and has likewise elected to delegate this role to the SPCA.
As demonstrated in the animal-control laws set forth in the
Code of Virginia, animal control is a responsibility of government.
A locality may choose to delegate these animal-control functions
to a third party, but it may not avoid the requirements of
FOIA by doing so. If a locality directly operated an animal-control
department within its government, records generated by that
department would unquestionably be subject to FOIA. The fact
that a locality chooses to work with an established organization
to perform the governmental functions instead of creating
its own department does not change the characterization of
the resulting records. Therefore, records relating to the
administration of animal control on behalf of the localities,
as well as the receipt and use of public funds in carrying
out these responsibilities, must be available for public inspection
or copying unless a specific statutory exemption applies.
the records of the SPCA relating to its work for the localities
are clearly public records, a more difficult question is whether
the SPCA qualifies as a public body for purposes of meetings
under FOIA. FOIA defines a public body at § 2.2-3701
to include 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. (Emphasis added).
FOIA does not define what it means to be "principally"
funded by public funds. This office has previously opined
that as a general rule, one could construe that an entity
that received at least two-thirds, or 66.6 percent, of its
operating budget from government sources would be supported
wholly or principally by public funds.3 However,
the opinion cautioned that the two-thirds rule is merely a
guideline, and that ultimately the question of whether an
entity is supported principally by public funds is a question
of fact that must be decided on a case-by-case basis.
indicate that the SPCA receives 63 percent of its operating
budget directly from the four localities. You also indicate
that the SPCA employees wear official animal-control uniforms,
drive police-style vehicles, and have the authority to issue
summons and testify in court on behalf of the localities.
These factors demonstrate that the SPCA officers and employees
hold themselves out to the public as an arm of the local government.
The services provided by the SPCA do not appear to supplement
or augment animal control services provided by the localities
individually; instead, the SPCA appears to be acting as an
arm of each of the localities as the sole animal control entity
in the region.
FOIA liberally, as is required by law, and coupling the 63
percent funding received from government entities with the
fact that the SPCA acts as the sole animal-control entity
of the four localities leads to the conclusion that the SPCA
is a public body for purposes of FOIA. As such, meetings of
the governing body of the SPCA must be properly noticed and
open to the public unless a specific statutory exemption applies.
However, the open meeting requirements would only apply to
the extent that the meetings relate to the discussion of public
business. In this instance, discussion of public business
would include discussion of animal-control duties and the
use of public funds. It would not include discussions unrelated
to the SPCA's work with the localities, such as private fund-raising
it appears that the SPCA is acting as an agent of the localities,
and thus records generated and received in carrying out this
role would be public records under FOIA. Furthermore, it appears
that the SPCA falls under the definition of a public body
and is also subject to the meeting requirements of FOIA. While
the 63 percent funding from government sources is shy of the
general two-thirds rule for determining principal funding,
the fact that the SPCA is acting as the animal-control arm
of the localities leads to the conclusion, in this instance,
that the SPCA is a public body to the extent that the governing
body of the SPCA is discussing its animal-control function.
you for contacting this office. I hope that I have been of
for the Prevention of Cruelty to Animals.
2See Freedom of Information Advisory Opinion 41
3See Freedom of Information Advisory Opinion 36
4As noted above, the question of whether a public
body is "wholly or principally supported by public funds"
is a question of fact to be examined on a case-by-case basis.
Therefore, the conclusions drawn in this opinion apply only
to the facts presented, and should not be construed to be
controlling in other fact scenarios.