VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-07-06

July 18, 2006

James G. Carr
Assistant Secretary of Transportation
Richmond, 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 and telephone conversations with staff on June 16, July 13, and July 17, 2006.

Dear Mr. Carr:

You have asked whether meetings of an independent review panel are public meetings subject to the requirements of the Virginia Freedom of Information Act (FOIA). You indicated that the Secretary of Transportation (the Secretary) requested that the American Society of Civil Engineers (ASCE) study options for the Dulles Corridor Metrorail Project. ASCE agreed to do so pursuant to a grant agreement with the Department of Rail and Public Transportation (the Department). The ASCE formed a panel to examine the issues and report back to the Department. Panel members were chosen and appointed by the ASCE, and consist primarily of engineering and construction industry professionals who participate on the panel on a voluntary basis. The ASCE determines all arrangements for meetings of the panel, including schedule, agenda, outside presentations, and other administrative details. You further stated that government employees will be made available to the panel to provide information upon request. Additionally, pursuant to the grant agreement, the Department has agreed to provide limited funding to the ASCE not to exceed $49,800 for expenses and a management fee. The majority of this funding will go toward reimbursing panel members for actual out-of-pocket travel and other expenses associated with meetings of the panel. At the conclusion of its work, it is expected that the panel will brief the Secretary and provide the Department with a report on its findings that will be made available to the public.

In order to determine whether meetings of the panel are subject to the requirements of FOIA, it must first be determined whether the panel is a public body under FOIA. If the panel is not a public body, then it is not bound to comply with the meetings requirements of FOIA, thus ending the inquiry. In addition to traditional public bodies such as city councils, school boards, and government agencies, § 2.2-3701 defines a public body to include other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds, as well as any 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. The panel in question is not a traditional public body such as a school board, town council, or government agency. Additionally, the panel is not a committee, subcommittee, or other entity of a public body; it is a creation of the ASCE, a private professional organization. However, the fact that the Department is providing funding to the ASCE leaves open the question of whether the panel is an organization...in the Commonwealth supported wholly or principally by public funds.

In prior opinions, this office has advised that, generally speaking, an entity will be considered to be supported wholly or principally by public funds if it receives two-thirds or more of its funding from public sources, but that each situation must be considered on a case-by-case basis.¹ Prior opinions have also advised that money received from competitive grants and public contracts should not be considered public funding for FOIA purposes.² To require public access to the inner workings of private businesses simply because of an arm's-length contractual relationship with a government entity would have a chilling effect on the willingness of private businesses to enter into public contracts with government entities.³ The facts you have presented indicate that the ASCE has received a grant from the Department pursuant to such a contractual agreement. An arm's-length contractual relationship does not change the status of the contracting parties for purposes of FOIA. Therefore the final consideration of whether the panel is supported wholly or principally by public funds is answered in the negative; the panel is not a public body as defined in FOIA. The panel is not required to hold its meetings open to the public or otherwise to comply with the requirements of FOIA.⁴

It is important to note, however, that records provided by the ASCE to the Secretary or the Department would be considered public records as records in the possession of a public body or its officers, employees or agents in the transaction of public business. The grant agreement provides that the Department retains ownership of certain records generated by the ASCE including presentation materials and reports with findings. Such records would therefore be subject to a FOIA request made to the Department, and to the Secretary if he comes into possession of the requested records. You have already indicated an intention to make public the final report of the panel. Please keep in mind that other records generated by the panel that are owned or possessed by the Department or the Secretary in the transaction of public business, such as the presentation materials mentioned in the grant agreement, would also be public records subject to FOIA. Such records must be disclosed upon request unless an appropriate exemption applies that would allow them to be withheld.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ See, e.g., Freedom of Information Advisory Opinion 9 (2005).
² See Freedom of Information Advisory Opinions 28 (2004) and 6 (2004).
³ See id.
⁴ I note that the Dulles Corridor Metrorail Project is a matter of great public concern and media attention at this time, as evidenced by the Secretary's press release dated May 15, 2006 and various news articles. Such publicity often generates an expectation of further public disclosure; while not required to comply with FOIA, the ASCE might wish to consider opening the meetings to the public and/or publicly releasing meeting minutes to address the public interest this matter has generated.