VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-07-07

July 11, 2007

Phil Theisen
Executive Director
Lynchburg Area Center for Independent Living
Lynchburg, Virginia

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 letter of April 24, 2007, and facsimile of June 18, 2007.

Dear Mr. Theisen:

You 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.

It is 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.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹§ 51.5-25 reads as follows:
A. Services provided through grants or contracts with centers for independent living pursuant to this chapter shall include:
1. Advocacy;
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.
²See, e.g., Freedom of Information Advisory Opinions 07 (2006) and 09 (2005).
³Freedom of Information Advisory Opinions 07 (2006), 28 (2004) and 6 (2004).
⁴Id.
⁵See, 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.