VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-05-11

October 17, 2011

Joe Coyle
Christiansburg Rescue Squad
Christiansburg, VA

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 August 17, 2011 and our telephone conversation of October 6, 2011.

Dear Mr. Coyle:

You have asked whether meetings of the Christiansburg Rescue Squad (CRS) must be conducted in accordance with the open meeting provisions of the Virginia Freedom of Information Act (FOIA).¹ As background, you stated that CRS was originally created as a private organization, but it appears that it was established as a department of the Town of Christiansburg (the Town) sometime in the late 1980's.² CRS provides services to Montgomery County (the County) as well as the Town, but is not a department of the County. You stated that CRS receives more than half of its funding from the Town and the County; the balance comes from private donations. You elaborated that CSR submits annual budget requests to the Town just as other departments do, and that both the Town and County provide line-item budget allocations to CSR for specific purposes. Regarding the private donations, you indicated that the expenditure process would be for a CSR officer or committee to make a spending recommendation, for the CSR members to vote on that recommendation, and if approved, the money would be given to the Town and the Town would actually make the recommended expenditure, because CRS does not have any independent capacity to do so.³ You indicated that the facilities, vehicles and equipment used by CRS are all owned by the Town or County. In addition to the relevant Town ordinances,⁴ CRS has its own Constitution which details the organizational structure and responsibilities of CRS volunteer members, officers, and committees. The Captain of CRS is appointed by the Town, and is a Town employee. All other members of CRS are volunteers. You indicated that the Town provides certain insurance coverage for the volunteer members.⁵ All CRS officers other than the Captain are elected from the membership by the members. The CRS Constitution provides for 15 officer positions other than the Captain, and for seven Committees, and delineates the duties and responsibilities of each. You stated that CRS holds monthly "business meetings" to address operational, membership, financial, and other issues. Further, you stated that these "business meetings" are attended by the Captain, the other officers, the general membership, and guests. The question presented is whether these "business meetings" and meetings of the various CRS committees, particularly the Executive Committee, must be conducted in accordance with FOIA.

In addressing your question, we must first examine the status of CRS as a public body as defined in Va. Code § 2.2-3701. The first clause in that definition includes 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. Under this definition there can be no doubt that the Town is a public body, and therefore as a department of the Town, CRS is a part of that public body. As stated regarding the expenditure of privately donated moneys, it appears that CRS does not have a separate legal existence apart from or independent of the Town. CRS was a separate legal entity at one time, as described in the factual background, but it appears that that is no longer the case. You indicated that CRS once had been incorporated, but after researching CRS and Town records, and checking with the State Corporation Commission, there is no evidence that CRS has any status as a corporation today.

Note that the definition of public body also includes other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. A prior opinion from this office found that a rescue squad was not a public body subject to FOIA because it was not supported wholly or principally by public funds.⁶ Given the facts you have presented, we need not address the issue of CRS' funding because CRS is established by ordinance as a department of the Town. As CRS is clearly part of a public body under the first clause of the definition, there is no need to consider whether it would also fall under the clause concerning public funding. Similarly, the definition of public body also 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. It is my understanding that the Town Council does have a Fire & Rescue Committee, which would be considered a public body subject to FOIA as a committee of the Town Council created to perform delegated functions of the Town Council or to advise the Town Council. CRS and its committees, however, are not sub-entities of the Town Council created to perform a delegated Town Council function or to advise the Town Council, rendering this aspect of the definition of public body inapplicable to CRS. Having considered these various aspects of the definition, CRS appears not to be a separate public body in its own right, but instead to be one part of the greater public body, that is, the Town as a whole.

The fact that CRS is part of a public body (the Town) does not answer the question of whether the monthly "business meetings" or committee meetings of the members are in fact meetings subject to FOIA. The term meetings is defined in § 2.2-3701 to mean

the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708 or 2.2-3708.1, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. The gathering of employees of a public body shall not be deemed a "meeting" subject to the provisions of this chapter.

When considering Town meetings which are subject to FOIA, typically one would think of meetings held by the Town Council, the Planning Commission, and the various boards, commissions, committees and other deliberative bodies appointed by the Town Council to perform delegated functions or advise the Town Council.⁷ In this instance, the Town Council and its Fire & Rescue Committee would appear to be the relevant public bodies regarding rescue matters that fall under the meetings requirements of FOIA.

Observe also that the CRS Constitution (as summarized above) sets forth the internal structure of the department in terms of officers, committees, and members, much as other departments and government agencies have their own organizational structure or hierarchy. While some governmental agencies and departments are divided into divisions or sections or use other terminology, it appears that CRS may have retained a structure similar to the corporate structure it had before becoming a department of the Town. While this internal structure may be unusual for a Town department, it appears to be functionally equivalent in the tasks it performs and in being made up of department personnel. Additionally, note that the various committees are created under the CRS Constitution. The membership of each committee varies, but consists of ex officio members and members appointed by the Captain. The CRS Committees are not committees created by the Town Council or another public body to perform a delegated function or advise the Town Council (or any other public body). While recognizing that CRS is comprised of volunteer members rather than Town employees, the CRS committee system appears more akin to a gathering of employees rather than a public meeting of an independent deliberative body. Keeping in mind that employee gatherings are explicitly excluded from FOIA's meeting requirements, I conclude similarly that meetings of the CRS committees and the more general "business meetings" of the full membership are not subject to the public meeting requirements of FOIA.

Additionally, consider what would be the result if the CRS "business meetings" were subject to FOIA. As described, the "business meetings" include the full membership of CRS. Given that a meeting occurs any time three or more members of a public body are gathered together to discuss public business, the result would be that any time three or more CRS volunteers were gathered to discuss CRS business, they would have to follow all of the meetings requirements of FOIA: give public notice beforehand, take meeting minutes, and ensure that the meeting was open to the public (unless a closed meeting was held according to the procedure allowed by FOIA). The public business of CRS is responding to emergencies. It is clearly untenable even to imagine that a life saving crew would have to give advance public notice before three or more members could even discuss responding to an emergency, or that they would have to follow closed meeting procedures with a motion and vote before discussing privately a victim's medical condition, but those are precisely the results if the "business meetings" of the full membership were to be considered meetings subject to FOIA, since emergency response is the public business of CRS. The same consideration applies to the CRS committees, although on a smaller scale since the committees do not include the full membership.

Finally, I would like to take this opportunity to discuss the use of the terms public body and meeting within FOIA, keeping in mind that FOIA generally can be viewed as having two subparts: one about access to public records, and the other about access to public meetings. Prior to 1999, the definition of public body set forth in then § 2.1-341 referred to any of the groups, agencies or organizations enumerated in the definition of "meeting" as provided in this section. The term public body as defined prior to 1999 thus could not stand alone, but was necessarily dependent on the definition of meetings to be complete. The definition of meeting then included the following language:

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 state institutions of higher education; and other organizations, corporations or agencies in the Commonwealth, supported wholly or principally by public funds.

This language setting forth what entities were considered public bodies within the definition of meetings was taken out of the meetings definition and incorporated into the definition of public body in 1999.⁸ The substance of the language was not changed, it was merely moved from the definition of one term (meetings) to another (public body). While it does not specifically address the reasoning for this change, a contemporaneous report to the General Assembly on the Freedom of Information Act mentions in several places that the definitions were reorganized and clarified in 1999.⁹ Therefore it appears that this change was meant as a clarification of existing law rather than as a substantive amendment. This historical usage is helpful to illustrate that the term public body when used in a meetings context is to be understood in conjunction with the definition of meeting. In this context, the term public body refers to deliberative bodies that hold public meetings such as councils, boards, and commissions, as originally set forth in the meetings definition. Observe also that the definition of meetings (then and now) refers specifically to the members of the public body holding the meeting, and excludes public employees. Reading these two definitions in conjunction, when applied in the meetings context, the public body that is subject to the public meetings requirements of FOIA is comprised of a limited group consisting only of the members of a deliberative body.

By contrast, the term public body as used in the definition of public records refers to records prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. The definition thus addresses who has prepared, possesses, or owns the public record, and it is written broadly to encompass records held by the public body itself, as well as records held by officials, employees, or agents of the public body. This broad usage in the records context stands in contrast to the more narrow application of the term public body when used in the meetings context. The different usages of the term public body are emphasized when considering the treatment of public employees, who are not members for meetings purposes, but do generate and keep public records. It is thus evident that there is an implicit dichotomy within the definition of public body depending on whether the matter at hand concerns meetings or public records. The definition of public body is modified by and must be understood in conjunction with the definitions of meetings and public records, respectively. Applying that understanding to your inquiry, it is clear that CRS, as a Town department comprised of a single Town employee and many volunteers, is subject to FOIA for public records purposes, but it is not a deliberative body of the sort which would be subject to FOIA for meetings purposes.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹For purposes of this opinion, you have stipulated that CRS is subject to FOIA for public records purposes, therefore this opinion only addresses whether CRS falls within the open meetings requirements of FOIA.
²Christiansburg, Va., Code § 23-1 states as follows: A voluntary rescue and lifesaving crew is hereby formed in the Town pursuant to Section 6.01 of the Town Charter and Code of Virginia, § 2.1-554 et seq.
(Ord. of 12-19-89, § 24.2-1). Note that former Code of Virginia § 2.1-554 et seq., the Virginia State Government Volunteers Act, is now codified at § 2.2-3600 et seq. Further note that § 15.2-955 provides that No volunteer rescue squad, emergency medical service organization or other organization providing similar type services, or volunteer fire-fighting organization shall be established in any locality on or after July 1, 1984, without the prior approval by resolution of the governing body. It appears that CRS was originally founded in 1947 by citizens who saw a need for a life saving crew, according to the CRS web site (http://www.christiansburgrs.org/home/about.php).
³You further indicated that CRS may establish a nonprofit foundation to take donations and make expenditures, but no such foundation exists at present.
⁴Christiansburg, Va., Code §§ 23-1 through 23-7.
⁵It is presumed for purposes of this opinion that the coverage provided corresponds to what is allowed by Va. Code § 2.2-3605.
⁶Freedom of Information Advisory Opinion 16 (2000).
⁷Note that the Town website lists both Council Appointed Boards and Commissions http://www.christiansburg.org/index.aspx?NID=409) as well as Council Committees (http://www.christiansburg.org/index.aspx?NID=176).
⁸1999 Acts of Assembly, chs. 703 and 726.
⁹Report of the Joint Subcommittee Studying Virginia's Freedom of Information Act, House Doc. No. 106 (Va. 2000)(note that part of the study focused on the definition of public records, but did so in considering whether to include university foundations and similar entities within the definition).