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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-22-04
October
29 , 2004
Michael
A. Turner
Virginia Beach, Virginia 23462
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 September 27, 2004 and on information obtained from WHRO
on October 29, 2004.
Dear
Mr. Turner:
You
have asked whether the Hampton Roads Educational Telecommunications
Association, Inc. (HRETA) is a public body as defined in the
Virginia Freedom of Information Act (FOIA). You also ask whether
an entity, which is subject to FOIA by virtue of it being
wholly or principally supported by public funds, can be later
excluded from the definition of a "public body"
because it no longer supported wholly or principally by public
funds.
In researching
your first question, this office was made aware of a case
heard in August 2004 in the Circuit Court of the City of Norfolk1
wherein Judge Leafe rendered an opinion on the issue of whether
HRETA, otherwise known as WHRO, is a public body under FOIA.
In his letter opinion, Judge Leafe held "[i]n light of
the facts presented, the Court finds that WHRO is not a public
body under FOIA because it receives 25 percent of its funding
from the government and does not perform a delegated function".
Additionally, the Court found that "[t]hough elected
by a nominating committee consisting of the school board members
of the corporation and members of the current Board, the Board
of Directors functions independently in managing the affairs
of the corporation. WHRO does not perform delegated governmental
functions of the incorporating school divisions".2
It is
the policy of this office not to issue an opinion once litigation
is commenced or a judge of competent jurisdiction has rendered
an opinion on the same factual questions raised in a request
for an advisory opinion of the Council. The court and not
the Council, is the appropriate body to decide and settle
a dispute as a matter of law. This office is aware that a
final order of the Circuit Court of Norfolk has not been entered,
and therefore the time period for noting an appeal has not
run. Absent a reversal of the circuit court's ruling on appeal,
its decision stands.
Your
second question asks whether an entity, which was subject
to FOIA by virtue of it being supported wholly or principally
by public funds, can be later excluded from the definition
of a "public body" because it no longer is supported
wholly or principally by public funds. The answer to this
question is that it depends on the status of the entity (e.g.,
whether is wholly or principally supported by public funds)
at the time a request for records is made under FOIA. The
office has previously opined that ultimately the question
of whether an entity is supported principally by public funds
is a question of fact that must be decided on a case-by-case
basis.3
I note,
however, that to the extent that any records exist of the
various school boards relative to HRETA, such records are
public records as defined in FOIA in that they are "...
prepared or owned by, or in the possession of a public body
or its officers, employees or agents in the transaction of
public business."4 As public records, they would be subject
to the mandatory disclosure requirements of FOIA, absent any
statutory exemption.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1David
D. Wigand v. Sherby Wilkes and WHRO, No. L04-974, ltr. op.
(City of Norfolk Cir. Ct. September 1, 2004), (2004 WL 1939074
(Va. Cir. Ct.)).
2Id.
3See Virginia Freedom of Information Advisory Opinion
03 (2004).
4See Va. CODE ANN. § 2.2-3701.
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