AO-09-09
October
23, 2009
Michael Lam
Elkton, 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 20, 2009.
Dear Mr. Lam:
You
have asked whether the American Frontier Culture Foundation
(the Foundation) is a public body subject to the requirements
of the Virginia Freedom of Information Act (FOIA). You contend
that the Foundation is a financial fundraising agent of
the Virginia Frontier Culture Museum (the Museum) and therefore
is a public body subject to FOIA. In support of this contention
you cite § 23-298 of the Code of Virginia, which provides
that the Board of Trustees of the Museum shall, among other
things, (e)stablish a nonprofit corporation to develop
and maintain public awareness of the [Museum] and [r]eceive
and expend gifts, grants, and donation of any kind from
whatever sources determined, including donations accepted
by the [Foundation] on behalf of the Museum. As described
on the Museum's website, the Foundation is a tax-exempt,
501(c)(3) organization, founded in 1982 to support the Frontier
Culture Museum's educational mission.1 As further background,
this inquiry stems from your request that the Museum provide
you with a copy of the Foundation's by-laws. The Museum
denied the request. The denial indicated that the Museum
did not have custody of the Foundation's by-laws, and even
if such a copy was physically on the premises, it would
belong to the Foundation, not the Museum. The reply also
provided contact information so you could direct your request
to the Foundation.
In
your inquiry you also referred to a prior opinion of this
office, Freedom of Information Advisory Opinion 37 (2001).
That opinion considered a situation where the Workers Compensation
Commission (the Commission) was required by law to maintain
certain records, but in fact contracted with a third party
vendor to do so. In summary, the opinion concluded that
because the Commission had a legal duty to maintain the
records, and because the vendor was acting as the Commission's
agent, the Commission was the legal custodian of the records
even though the vendor had actual possession of them. The
agency relationship was important in reference to the definition
of public records, which includes all writings and recordings...prepared
or owned by, or in the possession of a public body or its
officers, employees or agents in the transaction
of public business. [Emphasis added.] While addressing
the custody and status of the records as public records,
the opinion did not address the status of the vendor as
a public body. That opinion does not support a contention
that an entity such as the Foundation becomes a public body
because it has an agency relationship with a public body
such as the Museum. The existence of such a relationship
would not be dispositive regarding the Foundation's status
as a public body, although it could have bearing
on the status of records as public records.2
However,
the analysis is incomplete without also looking to the definition
of public body. That definition includes, among
other things, other organizations, corporations or agencies
in the Commonwealth supported wholly or principally by public
funds. This aspect of the definition may include nonprofit
and other corporations where such entities are wholly or
principally supported by public funds. Specific information
regarding the Foundation's budget was not provided, so no
conclusion may be reached in this instance regarding whether
the Foundation is supported wholly or principally by
public funds. However, nonprofit fundraising corporations
such as the Foundation typically raise money from private
sources, which are used both to support the operations of
the nonprofit corporation and to provide support to a public
body. In other words, such fundraising organizations do
not receive public funds - they do the opposite, by collecting
private donations and gifts and then passing them on to
the public entities such as the Museum. Therefore, as a
general rule, such fundraising organizations are not public
bodies subject to FOIA.
To
be thorough we must also consider the part of the definition
of public body which includes 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. In this instance,
it appears that the Board of the Museum established the
Foundation following the statutory mandate of § 23-298
quoted above. However, it appears that once established,
the Foundation is a corporate entity in its own right separate
from the Museum and its Board. As stated by the Supreme
Court of Virginia, a corporate entity cannot be disregarded
unless it is proved that the corporation is "the alter
ego, alias, stooge, or dummy of the individuals sought to
be [held personally accountable] and that the corporation
was a device or sham used to disguise wrongs, obscure fraud,
or conceal crime."3 No facts have been presented
that would require "piercing the corporate veil"
in this instance. As a separate corporation, the Foundation
is not a committee, subcommittee, or other entity however
designated, of the Museum. It further appears that
the function the Foundation performs is mandated by statute,
not one delegated by the Board of the Museum. Finally, no
evidence has been presented indicating that the Foundation
advises the Board. Again, it appears that the Foundation
does not fall within the definition of public body.
In
summary, the Foundation is not supported wholly or principally
by public funds, nor is it a committee, subcommittee,
or other entity however designated, of the Museum.
Therefore the Foundation is not a public body subject
to FOIA. This office recognizes that some feel that a fundraising
entity created by a government agency such as the Museum
should itself be treated as a government agency for FOIA
purposes. However, that is not the case under the current
state of the law. Any change to current law that might bring
such entities within the ambit of FOIA would require a policy
decision and action by the General Assembly. However, I
further note that as alluded to above, it is still possible
that records generated by the Foundation might be public
records. Particularly, if the Foundation is acting
as agent on behalf of the Museum, or if Foundation
records come to be possessed or owned by the Museum in the
transaction of the Museum's public business, then those
records would be public records. Addressing your
specific request for the Foundation's by-laws, the Museum
has already indicated that it does not have actual or legal
custody of them. As such, it would appear the only way to
obtain copies of the by-laws would be to ask the Foundation
for them.
Thank you for contacting this office.
I hope that I have been of assistance.
