AO-11-09

November 30, 2009

Stephen Finn
Arlington, 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 electronic mail of October 19, 2009.

Dear Mr. Finn:

You have asked two questions related to the Virginia Freedom of Information Act (FOIA). First, you asked whether a working group created to help consolidate two youth baseball leagues is a public body subject to FOIA. Second, you asked whether the modification of the description of the same working group, without any actual change to the composition or activities of the group, may constitute evidence of a knowing and willful violation of FOIA. In regard to this second question, this office lacks the authority to act as a trier of fact. It is the prerogative of the courts to weigh evidence in deciding whether a violation occurred and, if so, whether that violation was committed knowingly and willfully. Therefore we must decline to opine on whether the modification of the description of the working group may constitute evidence of a knowing and willful violation of FOIA.

As background regarding your first inquiry, you indicated that the working group was appointed in May, 2009 and includes members from the Arlington Sports Commission (the Commission),¹ the Arlington County Department of Parks, Recreation and Cultural Resources (the Department), as well as other persons with relevant experience. Specifically, you indicated that the working group includes one member of the Commission, one member of the Board, and two Department employees, as well as other interested persons. You stated that the membership list of the working group at times did not include one or both Department employees, but that they continued to attend working group meetings. Other materials included with your correspondence indicate that the working group is made up of 16 named members. It appears from an agenda for a public forum held by the working group on September 19, 2009, that the Department employees were listed as staff assisting the working group, rather than as named members of the working group. One document you provided described the working group as a working group under the joint leadership of the Sports Commission and Parks and Recreation staff (PRCR)(and including stakeholders).² You indicated that County staff later described the working group with the following statement: A working group composed of 16 people with experience in Arlington youth baseball and other sports was formed in May 2009 in consultation with the Sports Commission and [Department] staff. You assert that based on these facts, the working group is a public body that must hold its meetings open to the public in accordance with FOIA.

In considering whether or not an entity is a public body subject to FOIA, we must first look to the relevant definition set forth in § 2.2-3701:

Looking at the entities involved, the Board is the governing body of the County of Arlington, which clearly fits within the first clause of the definition of public body. The Commission is a public body because it is an other entity however designated, of the [Board] created ... to advise the [Board]. The Department is a public body for records purposes as an agency of the county, but consists of public employees rather than members, and so would not be a public body that holds public meetings.³

Turning now to consider whether the working group is a public body, it does not fit within the first clause of the definition as it does not appear to be a legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth. There is no indication that the working group receives any public funds, so we cannot consider it to be a public body under the second clause of the definition concerning other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. Therefore the working group would only be a public body if it is a 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. In determining whether the working group fits within this aspect of the definition, we must therefore look at how and by whom the working group was created and what function it performs.⁴

None of the background materials provided clearly state how the working group was created, or who created it. Some of documents indicate that the working group was appointed, but they do not say by whom. Others say the working group was formed...in consultation with the... Commission and the [Department], but similarly fail to state by whose authority or direction the working group was formed. The background materials do not include a record of any vote taken by the Commission or the Board in regard to creating the working group. Similarly, the materials provided clearly set forth the charge of the working group in that it is to evaluate the current baseball organizations, identify "sticking points," develop key principles of what the league should strive for, develop strategies for information sharing with current baseball boards, and recommend steps for implementation for Spring 2010. However, while this charge indicates that the working group is to perform an advisory function, the materials again fail to state who the working group will advise. Without this information, it is not clear whether the working group is acting on its own initiative or on behalf of another entity. Because of the lack of this necessary information, this office cannot offer any conclusive opinion as to whether the working group is, in fact, a public body subject to FOIA.

However, we can offer an analysis in the alternative that addresses the most likely factual scenarios. First, consider if the working group was appointed by either the Board or the Commission with the purpose of advising the body that created it as to the merger of the two baseball leagues. If this is the case, then the working group would be an other entity however designated, of the [Board or Commission] created...to advise the [Board or Commission]. Because the Board and the Commission are each public bodies, respectively, in either of these cases the working group would likewise be a public body.

Next, consider if the working group was appointed by a Department employee to advise that employee. Generally, a public employee is not a public body, and neither is an advisory body appointed by a public employee to advise him or her. To fit within the terms of the definition of public body, an entity must be of the public body created to perform delegated functions of the public body or to advise the public body. [Emphasis added.] In this hypothetical instance, the working group would instead be an entity of a public employee created to advise the public employee. Such facts do not meet the terms of the definition; given these facts, the working group would not be a public body. However, while it would not be a public body, working group records may be public records subject to FOIA in such an instance.⁵

Finally, consider if the working group was self-appointed and acting on its own initiative without any delegation of function or assignment by the Commission, the Board, or the Department. In this case, there may be ad hoc participation by members of the Commission, the Board, or the Department, but that participation alone would not turn a self-appointed group into a public body. In other words, the working group in such an instance would have been self-created and would only perform functions and provide advice as it chooses, not through any delegation or charge by another entity. In that instance, the working group would not be a public body subject to FOIA.⁶

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

Sincerely,

Maria J.K. Everett
Executive Director