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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-18-03
July
7, 2003
Mr. Daniel
L. Lurker
Via email
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 emails
of April 17, 2003, and May 12, 2003.
Dear
Mr. Lurker:
You
have asked a question about the application of the Virginia
Freedom of Information Act (FOIA) to the student government
organization of a state university, and whether a university
is the custodian of records of the student government organization.
You indicate
that you made a request for records from the student senate
at George Mason University ("the University"), a
state institution of higher education, but that the speaker
of the student senate refused to supply the records. You subsequently
directed the same request to the University itself. The legal
affairs department responded that it agreed that the student
senate was subject to FOIA because student fees funded it.
However, legal affairs stated that it was not in possession
of the student senate records because the student senate was
an independent organization recognized by the University,
but not a department within the University. You ask if the
University is required to respond to your FOIA request for
student senate records.
FOIA
defines a public body as any legislative body, authority,
board, bureau, commission, district or agency in 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.) The Office of the Attorney General of Virginia
and The Virginia Freedom of Information Advisory Council have
both previously opined that if a student government at a state
institution of higher education is supported wholly or principally
by public funds, such as by student fees, then it is a public
body subject to the requirements of FOIA.1 As indicated in
the University's response to your request, the student senate
is supported by student fees, and is thus a public body under
FOIA.
Subsection
B of § 2.2-3704 of the Code of Virginia requires that
[a]ny public body that is subject to [FOIA] and that is
the custodian of the requested records shall promptly, but
in all cases within five working days of receiving a request,
make one of four responses. The public body may provide
the requested records, withhold the records if subject to
an exemption, withhold the records in part and release in
part if only a portion of the records are subject to an exemption,
or respond that it is not practically possible to respond
within five working days, in which case the public body will
have seven additional working days in which to respond. If
the public body is withholding the records in whole or in
part, or responding that it is practically impossible to respond
within five working days, the response must be in writing.
Therefore, upon receipt of your initial request, FOIA would
require the student senate to respond accordingly and a failure
to do so would constitute a violation of the law.
While
the student senate is a public body, by virtue of the fact
that it receives public funding, it does not necessarily follow
that it is a subset of the University, such as an academic
department, nor does it follow that the University would be
required to respond to a request for student senate records.
One could argue that because the student senate is funded
by the University, has a University faculty advisor, and is
provided office and meeting space by the University, it is
a part of the University as a whole. However, student government
associations are student-run organizations. The Attorney General
did not find that student organizations were subject to FOIA
by virtue of the fact that they were associated with or somehow
a subset of a University; instead, the Attorney General based
its conclusion that a student organization was subject to
FOIA because it was supported wholly or principally by public
funds. This indicates that a student organization is an independent
public body, separate from the University. Theoretically,
if the University decided to discontinue funding to the student
senate, it could continue to exist by establishing dues for
its members or seeking other sources of funding. The student
senate's existence as an organization does not hinge on the
University. While the University and the student senate may
be closely related and have many commonalties, the University
would not technically be responsible for responding to a request
for public records from the student senate.
The fault
for failure to respond to your FOIA request lies with the
student senate, and not with the University itself. Because
the student senate appears to be a separate public body, the
University is not technically the custodian of the student
senate records, and thus not required by FOIA to produce the
requested records. Certainly, because of the close relationship
between the University administration and the student senate,
it would have been possible and perhaps desirable for the
University administration to forward your request to the student
senate and advise the organization of its requirements under
the law, instead of responding that the University was not
the custodian of the records. However, the letter of the law
would not require such a response.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1 See 1984-85 Op. Atty. Gen. Va. 431. See also
Virginia Freedom of Information Advisory Opinion 23 (2001).
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