FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Lynchburg Area Center for Independent Living
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 letter
of April 24, 2007, and facsimile of June 18, 2007.
Dear Mr. Theisen:
have asked whether the Lynchburg Area Center for Independent
Living (LACIL) is a public body subject to the Virginia
Freedom of Information Act (FOIA). It does not appear that
any prior published opinions have specifically addressed this
issue. A public body is defined in § 2.2-3701
to mean 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. It shall
include ... any committee, subcommittee, or other entity however
designated, of the public body created to perform delegated
functions of the public body or to advise the public body.
It shall not exclude any such committee, subcommittee or entity
because it has private sector or citizen members.
my understanding that LACIL is a private business entity that
provides services for individuals with disabilities, and is
a center for independent living as that phrase is
used in § 51.5-25.1 LACIL is not a traditional
public body such as a legislative body, authority, board,
bureau, commission, district or agency of the Commonwealth
or any political subdivision. Similarly, LACIL is not a committee,
subcommittee, or other entity of another public body. However,
according to materials you provided with your facsimile, it
appears that LACIL receives approximately 93% of its total
budget through public funds from the Virginia Department of
Rehabilitative Services (the Department) and the federal government.
While the facts of each situation must be examined on a case-by-case
basis, as a general rule this office has previously opined
that an entity that receives two-thirds (66%) or more of its
funds from public sources would be considered to be supported
... principally by public funds.2 Prior opinions
have also advised that money received from competitive grants
and public contracts should not be considered public funding
for FOIA purposes.3 While it is my understanding
that much of the money received by LACIL is from "grants,"
it is also my understanding that these are not competitive
grants. Competitive grants are akin to public contracts
negotiated between independent parties at arms' length, and
are not to be considered public funds for purposes
of determining whether an entity is a public body.4
However, other grants that are more akin to appropriations
or an exercise of governmental largesse may be considered
public funds for FOIA purposes. My understanding
is that in this case LACIL receives this grant money through
predetermined formulae under state and federal statutory requirements,
and that there is no competitive process involved.5
As such, these grant monies are considered public funds.
Following the two-thirds rule of thumb previously stated,
LACIL is a public body subject to FOIA because it
is principally supported by public funds.
you for contacting this office. I hope that I have been of
51.5-25 reads as follows:
A. Services provided through grants or contracts with centers
for independent living pursuant to this chapter shall include:
2. Peer counseling;
3. Independent living skills training; and
4. Information and referral.
Services may include other services deemed necessary by the
local consumer base.
B. Centers for independent living funded in whole or in part
by the Department shall be staffed by persons with disabilities
who are trained in the philosophy of independent living. The
majority of management staff shall include persons with disabilities.
e.g., Freedom of Information Advisory Opinions 07 (2006)
and 09 (2005).
3Freedom of Information Advisory
Opinions 07 (2006), 28 (2004) and 6 (2004).
e.g., § 51.5-23 (statutory authority for the Department
to issue grants and enter into contracts); the federal Rehabilitation
Act of 1973, 29 U.S.C. § 701 et seq.