AO-10-00
December 12, 2000
Mr. Douglas A. Guynn, Esq.
Wharton, Aldhizer & Weaver, PLC
Harrisonburg, VA
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 email of October 28, 2000.
Dear Mr. Guynn:
You have asked a series of questions concerning the participation
of school board members in activities sponsored by the Virginia
School Boards Association (VSBA), and VSBA's status as a public
body under the Virginia Freedom of Information Act (FOIA).
You indicate that VSBA is supported largely, if not entirely,
by payments from Virginia school boards, and routinely holds
conventions and education and training events, as well as
lobbying the Virginia General Assembly on behalf of itself
and local school boards.
1. Your first question concerns the definition of a public
body, and whether VSBA qualifies as a public body under FOIA.
FOIA defines a public body as any legislative body; any
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.
(Emphasis added). You have indicated that VSBA obtains most
of its funding from local school boards across the Commonwealth
in the form of membership dues. It is a trade association
much like other professional associations including the Virginia
Municipal League, the Sheriff's Association, and the Local
Government Attorneys Association of Virginia. It is the opinion
of this office that an organization such as VSBA does not
fall under FOIA's definition of a public body.
An opinion of the Attorney General distinguished between
various professional organizations and their statuses as public
bodies under FOIA.1 The opinion found that an organization
of presidents of state-supported colleges fell outside the
scope of the definition of a public body. While the opinion
did not indicate how much, if any, of the organization's funds
were derived from public sources, the reasoning hinged on
the fact that the organization was created by the presidents,
and not the state, to discuss problems and issues common to
state college presidents. Similarly, VSBA is comprised of
school board members who voluntarily join the organization
and convene to discuss and learn about current issues common
to school administrators. VSBA does not act as an advisory
or policy-setting body to individual school boards.
Furthermore, a court has construed the definition of "organization"
in FOIA so as to parallel the types and functions of public
bodies enumerated in the definition.2 A circuit
court found that the bodies described in the definition are
those types of bodies that are "constitutionally or legislatively
charged with the governance of, and ultimate responsibility
for, a discrete agency of government."3 VSBA's
mission and activities would not fall under this interpretation
of an organization.
2. Your second question asks whether VSBA meetings constitute
public meetings. In light of my response to your first question,
the VSBA meeting itself would not be considered a public meeting,
because VSBA is not a public body.
3. Your third question asks if a gathering of three or more
members, or a quorum if less than three, of one school board
at a VSBA convention or training session qualifies as a meeting
under FOIA. FOIA defines a meeting as a gathering of three
or more members, or a quorum if less than three, of a public
body. However, subsection G of
§ 2.1-343 allows members of a public body to gather at any
place or function where no part of the purpose of the gathering
is to discuss or transact public business. Thus, multiple
members of a given school board may gather at the same VSBA
event without invoking the requirements of FOIA, so long as
they do not discuss or transact business. If members
of a particular school board discuss public business, then
the gathering would be considered a meeting for which notice
must be given and the public able to attend.
4. Your fourth question asks if materials obtained by a school
board member at a VSBA event would be subject to a FOIA request.
A public record, by definition, is one 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). Materials obtained by an individual member
for his or her own education would not fall under this definition,
and thus would not be subject to a FOIA request. However,
if a board member incorporated these materials into the conduct
of public business, such as later using them to formulate
or discuss policy of the individual school board, the documents
would become public records.
5. Your fifth question asks whether materials provided by
a school board member to VSBA must be available to the public
upon request. The answer to this question depends on the status
of the information prior to being forwarded to VSBA. If data
or materials were used in the transaction of public business,
and were thus public records prior to being provided to VSBA,
then those materials would retain their status as a public
record. If a member forwards information not created in the
course of the transaction of public business, those records
would not become public by reason of being provided by a school
member and forwarded to VSBA.
6. Your final question inquires as to the proper response
by a school board to a media request to attend a VSBA convention
or event. Because VSBA is not a public body, the VSBA gathering
would not be considered a public event unless the members
of a particular board decided to discuss or transact public
business while in attendance. Thus, the event would not fall
under the reach of FOIA provisions. This is not to say that
an inquiring member of the media or public should be led to
believe that the event is an executive or closed session,
but instead merely not within the scope of FOIA. Since it
is a private function, an inquiring individual might be directed
to discuss the possibility of attendance with an officer of
VSBA.
One final note, subsection G of § 2.1-343, commonly known
as the "bump into provision," does not prohibit the gathering
of members of a public body so long as no part of the
purpose of the gathering or function is to discuss or transact
public business and was not prearranged for that purpose.
Members of a public body in attendance must limit their conversations
to issues not related to the public business in order to be
in compliance with FOIA. I suggest that someone serve as a
"gatekeeper" at these gatherings to keep discussions within
the allowable limits of the law.
Thank you for contacting this office. I hope that I have
been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
11974-1975 Op.
Atty. Gen. Va. 584.
2Students for Animals v. The Rector and Board
of Visitors of the University of Virginia, Richmond Cir. Ct.,
Case No. N-6464-3 (1988).
3Id.
