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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-41-01
September
4, 2001
Mr. George Baker
Chairperson, Waynesboro Tourism Steering Committee
Waynesboro, Virginia
Ms. Iris Karl
Member, Waynesboro Tourism Steering Committee
Waynesboro, 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 a phone
conversation of June 19, 2001.
Dear Mr. Baker and
Ms. Karl:
You have asked a
question concerning the application of the Virginia Freedom
of Information Act to a tourism program run by the Augusta
County Chamber of Commerce ("the Chamber"). You indicate that
the Chamber manages the tourism program for the City of Waynesboro,
and that the program is funded exclusively with public money.
In addition, you state that the Chamber runs the tourism information
center, a duty delegated to it by the city council. When records
relating to these two activities were requested from the city
council, you indicate that the council responded that such
records were in the possession of the Chamber, and thus the
records were not provided.
Subsection A of
§ 2.1-342 of the Code of Virginia requires that [e]xcept
as otherwise specifically provided by law, all public records
shall be open to inspection and copying by any citizens of
the Commonwealth. 1 FOIA defines a public record
at § 2.1-341 as 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.2 (Emphasis added).
In the facts that
you have presented, the Chamber does not appear to be a public
body under FOIA. FOIA defines a public body at § 2.1-341 to
include organizations, corporations or agencies in the
Commonwealth supported wholly or principally by public funds.
It shall include any committee, subcommittee of the public
body created to perform delegated functions of the public
body or to advise the public body.3 It does
not appear that the Chamber in its entirety is supported wholly
or principally by public funds, nor does it appear that the
city council created the Chamber solely to perform its delegated
functions or to advise the public body. However, the fact
that the Chamber is not a public body does not end the discussion
of whether certain records that it maintains may be available
to the public.
The Virginia Freedom
of Information Advisory Council ("the Council") has previously
addressed a similar question in finding that records collected
by a private third party for a public body were subject to
FOIA.4 In reaching this conclusion, the Council
relied on the fact that the definition of a public record
indicates that physical possession of a document by a public
body is not the only criterion for determining whether it
is accessible by the public. The definition indicates that
a record in the possession of an agent of the public body,
relating to the transaction of public business, would be subject
to FOIA. In the instant case, it appears that the Chamber
is performing a task delegated to it by the city council.
Ordinarily, a local governing body would be involved in running
local tourism activities. Here, however, the city council
has delegated this task to the Chamber, and has provided funding
to carry out this task. Thus, in so far as the Chamber has
records relating to the tourism programs of the City, it is
acting as an agent for the city council and the records are
available to the public under FOIA.
In the facts that
you present, you indicate that you requested these records
from the city council. However, the facts indicate that the
records were actually in the possession of the Chamber. FOIA
states at subsection A of § 2.1-342 that all public records
shall be open to inspection and copying by any citizens of
the Commonwealth during the regular office hours of the
custodian of such records.5 (Emphasis added).
In the instant case, the Chamber would be the custodian of
the records since they possess them in their capacity as an
agent for the city council in implementing the tourism program.
The instant case is distinguishable from the Council's advisory
opinion mentioned above.6 In that advisory opinion,
the public body had a statutory duty to collect certain information,
and it contracted with a private third party to collect that
data. There, the public body remained the custodian of those
records, even though it did not have physical custody, because
of the statutory duty to maintain the information in those
records. Here, there is no statutory duty for the city council
to maintain a tourism program, but it has chosen to fund such
a program and delegate its administration to the Chamber.
There is no statutory duty for the city council to maintain
records relating to tourism. In this instance, the Chamber
is acting as an agent for the city council. Therefore, while
not all records of the Chamber are public records subject
to FOIA, those relating to the tourism program that is funded
by the city council are subject to FOIA and available to the
public. The Chamber, and not the city council, is the appropriate
entity to ask for these records.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1Va.
Code Ann. § 2.2-3704(A) (Michie 2001) (effective Oct. 1, 2001).
2Va. Code Ann. § 2.2-3701 (Michie 2001) (effective
Oct. 1, 2001).
3Va. Code Ann. § 2.2-3701 (Michie 2001) (effective
Oct. 1, 2001).
4Virginia Freedom of Information Advisory Opinion
37 (2001).
5Va. Code Ann. § 2.2-3704(A) (Michie 2001) (effective
October 1, 2001).
6Virginia Freedom of Information Advisory Opinion
37 (2001).
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