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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-10-08
October
29, 2008
Jennifer Daniels
Annandale, 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 of September 8, 2008.
Dear Ms. Daniels:
You
have asked whether certain records of the Annandale Neighborhood
Center (the Center), a local community center, are public
records subject to disclosure under the Virginia Freedom of
Information Act (FOIA). You indicated that Fairfax County
(the County) provides funding to Alternative House, a 501(c)(3)
nonprofit organization, to run the Center. You point out that
the Center is listed on the County's website as a Public-County
type of organization.1 You stated that approximately 95% of
the Center's funding comes from the County, and that the Center
is located on land owned by Fairfax County Public Schools.
You further related that approximately 60% of Alternative
House's budget comes from federal, state, and local funding,
based on publicly disclosed tax filings from 2005. You related
that you requested copies of the sign-in sheets for two events
held at the Center that were open to the public, an open house
for community members and service providers, and an "Annandale
Friends Coalition" meeting of local service providers.
You indicated that you were initially told that these were
not public documents. After you responded that they were indeed
public records, the matter was referred to the County grant
administrator. Your request was again denied; you were informed
that the sign-in sheets had the names of all persons entering
the facility, not just those attending the events in question,
and that due to the type of services provided, release
of the facility sign-in-sheet would violate individual privacy.
You further indicated that your initial request was directed
to the Center, but Alternative House staff referred you to
the County. It appears that the County Attorney's office then
informed you that Alternative House, as a contractor with
the County, would not necessarily be considered a public body
subject to FOIA. You then ask whether the records of a community
center funded by the County that serves a public purpose should
be considered public records subject to FOIA.
First,
it appears that there may be some confusion regarding Alternative
House, the Center, their relationship with each other, and
their relationship with the County. The County website that
lists the Center as a Public-County organization2
also lists Alternative House as a Private-Nonprofit organization.3
The website also lists different administrators, different
addresses, and different contact information for the Center
and Alternative House. Alternative House is described as operating
a crisis shelter and hotline for teens and providing programs
for teens at various Family Resource Centers in Fairfax.4
The equivalent description of the Center states that Fairfax
County Government and Fairfax County Public Schools have partnered
to open a Neighborhood Center in Annandale....the Center is
operated by Alternative House.5 Based upon the information
you provided and the information on the County website, it
therefore appears that Alternative House is a private nonprofit
organization that provides services for at-risk teens to the
County on a contractual basis, among other activities. Based
upon the same information, the Center is a community center
facility created by the County and the Fairfax County Public
Schools (the County Schools), which is run by Alternative
House by contract with the County. The terms of the contract
were not presented.
FOIA
defines a public body to include not only traditional
government entities such as state agencies, local governments,
and school boards, among others, but also other organizations,
corporations or agencies in the Commonwealth supported wholly
or principally by public funds. This office has previously
opined that each such entity must be examined on a case-by-case
basis, but as a general rule of thumb, an entity that receives
two-thirds or more of its funding from public sources would
be considered supported...principally by public funds.6
Alternative House is listed as a Private-Nonprofit
organization, and you indicated it receives approximately
60% of its funding from local, state, and federal sources.
Based on the characterization of Alternative House as a contractor
by the County Attorney's office, it appears that at least
some of that money is received pursuant to contract, rather
than as a government appropriation or through government largesse.
As previously opined by this office, money received from competitive
contracts or grants is generally not to be considered public
funds when determining whether an entity is a public
body subject to FOIA.7 If such monies were
considered public funds, it would have a chilling
effect on the willingness of private companies to contract
with government, as it would require them to open their records
to public scrutiny solely because they entered into a contract
with government. As expressed in § 2.2-3700, FOIA was
enacted to ensure the people of the Commonwealth ready
access to public records in the custody of a public body or
its officers and employees, and free entry to meetings of
public bodies wherein the business of the people is being
conducted. Opening private company records to public
scrutiny in this manner would impair government's ability
to contract without furthering those stated goals of FOIA.
When a public body contracts with a private entity, contract
records can be obtained from the public body. In that fashion,
the public can be apprised of what government is doing and
how the taxpayers' money is being spent, without needlessly
opening the records of private entities to public scrutiny.
Additionally, in the case of tax-exempt entities, it appears
that federal law requires public disclosure of certain financial
information.8 In this instance, it appears that
Alternative House is a private nonprofit corporation that
contracts with government; approximately 60% of its budget
comes from government sources, but it is unclear how much
of that is under the terms of the contract with the County.
Stated differently, something less than two-thirds of Alternative
House's budget comes from public sources, information on its
finances is available through its publicly disclosed IRS filings,
and information on its contractual agreement(s) with the County
would be available through the County. Given this factual
background, it appears that Alternative House is not supported
wholly or principally by public funds, and is not a public
body subject to FOIA.
Turning
next to the definition of public record in §
2.2-3701, it includes all writings and recordings...however
stored, and regardless of physical form or characteristics,
prepared or owned by, or in the possession of a public body
or its officers, employees or agents in the transaction of
public business. Alternative House itself may not be
a public body, but if it is acting as an agent of the County
in conducting the Center's programs, then records it prepares,
owns, or possesses concerning that public business also would
be public records.9 Similarly, any records held
by the County concerning the transaction of public business
- including the business of the Center - would also be public
records subject to FOIA. Therefore, it appears that the
sign-in sheets you requested concerning the events held by
the Center would be public records concerning the transaction
of the Center's public business. In other words, the sign-in
sheets are public records because they are prepared,
possessed, and owned by a public body (the County) or its
agent (Alternative House) in the transaction of public business
(operating programs at the Center). Therefore under FOIA,
those records are subject to disclosure upon request, unless
an exemption applies.
You
stated that you were informed that the sign-in sheets had
the names of all persons entering the facility, not just those
attending the events in which you were interested, and that
due to the type of services provided, release of the facility
sign-in-sheet would violate individual privacy. While
this statement may be true, standing alone, it does not comply
with the procedural requirements of FOIA. Subdivisions B 1
and B 2 of § 2.2-3704 address the procedural requirements
when a request is denied in whole or in part, respectively.
In either case, the denial must be in writing and it must
identify with reasonable particularity the subject matter
of withheld portions, and cite, as to each category of withheld
records, the specific Code section that authorizes the withholding
of the records. If the request is denied entirely, the
denial must also identify the volume of the withheld records.
It is possible that there are exemptions that may apply to
portions of the sign-in sheet, however, it does not appear
that any exemptions were cited or that the subject matter
or volume of the withheld records was identified. As such,
the response appears, at best, to be incomplete.
Thank you for contacting this office. I
hope that I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1The
Center is listed on the Fairfax County website at http://www.fairfaxcounty.gov/rim/organizationdetail.asp?stringName=ANNANDALE+NEIGHBORHOOD+CENTER&Orgrsn=2047
(last visited October 23, 2008).
2Id.
3Alterrnative House is listed on the Fairfax County
website at http://www.fairfaxcounty.gov/rim/organizationdetail.asp?stringName=ALTERNATIVE+HOUSE&Orgrsn=215
(last visited October 23, 2008).
4Supra, n.1.
5Supra, n.3.
6See, e.g., Freedom of Information Advisory
Opinions 07 (2007), 09 (2005) and 36 (2001).
7See Freedom of Information Advisory Opinions
07 (2007), 07 (2006), 28 (2004), and 6 (2004).
8While federal tax matters are outside the purview
of this office, the Internal Revenue Service (IRS) provides
an overview of what tax information an exempt entity must
disclose publicly on the IRS website at http://www.irs.gov/charities/article/0,,id=135008,00.html
(last visited October 22, 2008).
9See Freedom of Information Advisory Opinion
19 (2003)(addressing the determination of whether an entity
is acting as the agent of a public body).
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