VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-08-08

October 16, 2008

Haskell Brown, Esq.
Office of the City Attorney
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 facsimile dated August 8, 2008 (received September 29, 2008).

Dear Mr. Brown:

You have asked whether advisory committees formed by a sitting mayor to provide advice to the mayor are public bodies subject to the provisions of the Virginia Freedom of Information Act (FOIA). You have indicated that such an advisory committee is of essentially the same type as was considered in Advisory Opinion 27 (2004), except that now it was formed by the sitting mayor of the City of Richmond, rather than by the mayor-elect of the City. You stated that such advisory committees are comprised of private citizens appointed by the mayor to advise him on various topics of public concern, such as education, human services, local jail conditions, and other government issues. These advisory committees do not exercise any authority over City employees and are not vested with any governmental power. City staff does provide information on the workings of City government to these advisory committees. The advisory committees are not supported by any public funds. In this instance, the mayor is an elected official who serves as chief executive officer of the City.

FOIA defines a public body to mean any legislative body, 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. It shall include ... 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. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members. An advisory committee such as you have described is not a legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, nor is it wholly or principally supported by public funds. Therefore we need only consider the latter portion of the definition concerning committees, subcommittees, and other entities.

As discussed in Advisory Opinion 11 (2007), several prior published opinions have addressed whether citizen advisory committees are public bodies subject to FOIA. The Attorney General opined that a citizen advisory committee created by a city mayor to advise the mayor was not a public body because it was not created by a public body, does not perform delegated functions of a public body, does not advise a public body, and does not receive public funding.¹ A more recent opinion of the FOIA Council found that a citizen advisory group created by the State Transportation Board is a public body because it was created by a public body (the Board) to advise a public body (the Board).² As you observed, Advisory Opinion 27 (2004) opined that an advisory group created by a mayor-elect was in essence a group of citizens advising another citizen, and so did not fall within the definition of a public body.³ This office also opined that a "task force" composed of twenty citizens appointed by a Board of Supervisors was itself a public body, as it was an entity of a public body created to advise the public body.⁴ Advisory Opinion 11 (2007) addressed a citizen advisory committee created by a sheriff, and concluded that such a committee was not a public body subject to FOIA. The varying results of these prior opinions highlight the definitional requirement that in order for a committee or other similar entity to be considered a public body, it must have been created by another public body and perform a delegated function for, or provide advice to, that other public body.

The opinion of the Attorney General first cited above fits the facts you have described in this instance. Although there have been several changes to the definition of public body since that opinion was first issued in 1979, none of those changes affect the validity of the Attorney General's conclusion: a citizen advisory committee created by a city mayor to advise the mayor that receives no public funds is not a public body because it is not created by a public body, does not perform delegated functions of a public body, does not advise a public body, and does not receive public funding. Simply put, the Mayor is not a public body, and in this case, neither are the citizen committees that he has created to advise him.

As a final matter to consider, you also presented an ordinance passed by the City Council that would cause the Mayor's advisory committees to comply with FOIA, among other effects. You indicated that the Mayor vetoed this ordinance on the basis that it interferes with the deliberative process privilege of the executive branch and violates separation of powers principles. The City Council overrode this veto. Section 2.2-3700 sets forth the policy of FOIA, including the statement that [t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government....the provisions of [FOIA] shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. The same section also states that [a]ny ordinance adopted by a local governing body that conflicts with the provisions of [FOIA] shall be void. Based upon the copy of the ordinance you provided, it does not appear to conflict with FOIA. By causing the Mayor's advisory committees to be treated as if they were subject to FOIA, the ordinance may in fact increase public awareness of governmental activity, furthering the stated policy goals of FOIA. However, although it does not appear to conflict with FOIA, this office cannot render any opinion on the validity of the ordinance in regard to the deliberative process and separation of powers issues raised by the Mayor's veto.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹1978-1979 Op. Att'y Gen. Va. 316A.
²Freedom of Information Advisory Opinion 24 (2001).
³Freedom of Information Advisory Opinion 27 (2004).
⁴Freedom of Information Advisory Opinion 10 (2005).