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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-07-12
December 19, 2012
Jack Hinshelwood
Executive Director
The Crooked Road: Virginia's Heritage Music Trail
Abingdon, 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 our telephone conversations
of October 31, 2012, and November 26, 2012, and your
electronic mail of November 15, 2012, and November
29, 2012.
Dear
Mr. Hinshelwood:
You have asked whether the Crooked Road, a nonprofit
entity, is subject to the provisions of the Virginia
Freedom of Information Act (FOIA). The Crooked Road
is described as a tax-exempt nonprofit entity created
to generate tourism and economic development in the
Appalachian region of Southwestern Virginia by focusing
on the region’s unique musical heritage.1
As background, you indicated that the Crooked Road
was once supported by a locality, but now operates
in conjunction with the Southwest Virginia Cultural
Heritage Foundation (the Foundation)2 and
other affiliated organizations, and receives additional
funding from the Friends of Southwest Virginia (another
nonprofit organization) and other sources. The Crooked
Road's website further states that "The Crooked
Road” is funded primarily by the Appalachian Regional
Commission. Additional support comes from the United
States Department of Agriculture Rural Development
Program, the Virginia Department of Housing and Community
Development, the Virginia Tobacco Indemnification
and Community Revitalization Commission, the Virginia
Coalfield Economic Development Authority, the Virginia
Tourism Corporation, and local communities. Further
background information will be set forth as needed
below.
The general policy of FOIA set forth in § 2.2-3700
is 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. The term "public
body" is defined in § 2.2-3701 to mean
any
legislative body, authority, board, bureau, commission,
district or agency of the Commonwealth or of any
political subdivision of the Commonwealth ...
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.
Generally
speaking, nonprofit entities may fall within this
definition as other organizations, corporations
or agencies in the Commonwealth supported wholly or
principally by public funds.3 As a
general rule of thumb, this office has advised that
an entity which receives two-thirds or more of its
support from public funds would be considered principally
supported by public funds, but each situation must
be considered on a case-by-case basis.4
As described above, it appears that the Crooked Road
receives funding from various diverse sources, including
federal, state, and local government agencies, other
nonprofit corporations, and private donations. You
indicated that the Crooked Road has an operating budget
of approximately $275,000, approximately $87,500 of
which comes from public funds. Given this background
information, that only about one-quarter of the Crooked
Road's support comes from public funds, it appears
that the Crooked Road would not be a public body
subject to FOIA based upon its funding.
However, in this instance, the inquiry is further
informed by reference to the statutory powers and
duties of the Foundation. Specifically, subsection
B of § 2.2-2736 provides as follows:
The
Foundation may establish nonprofit, nonstock corporations
under Chapter 10 (§ 13.1-801 et seq.) of
Title 13.1 as public instrumentalities
exercising public and essential governmental functions
to assist the Foundation in (i) encouraging
the economic development of Southwest Virginia
through the expansion of cultural and natural
heritage ventures and initiatives related to tourism
and other asset-based enterprises, including the
Southwest Virginia Artisan Center, The
Crooked Road, 'Round the Mountain, and
related cultural and natural heritage organizations
and venues that promote entrepreneurial and employment
opportunities and (ii) conducting other activities
useful in carrying out the provisions of this
article.
[Emphasis
added.] Thus by operation of law it appears that the
Crooked Road is a public instrumentality exercising
public and essential governmental functions to assist
the Foundation. While the phrase public instrumentality
is used in many different parts of the Code of Virginia,
it is not defined by statute, and does not appear
in the listed terms in the definition of public
body in § 2.2-3701. Turning to common usage
in the absence of a statutory definition, the term
instrumentality in this context means
a subsidiary branch, as of a government, by means
of which functions or policies are carried out.5
Thus, the Crooked Road appears to be a public, subsidiary
branch of government (in this case, of the Foundation
and the General Assembly, as provided by law) carrying
out a specific statutory function as quoted above.
Therefore, even though the Crooked Road does not appear
to be supported wholly or principally by public
funds, it is still a public body subject
to FOIA.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Quoted from the Crooked Road website
"About the Trail" web page (http://thecrookedroad.org/contentpage.asp?ID=1002,
last visited December 18, 2012).
2The
Foundation is itself a public body established by
Va. Code § 2.2-2734; the Foundation was formerly
known as the Southwest Virginia Cultural Heritage
Commission.
3See Freedom of Information Advisory
Opinions 36 (2001), 48 (2001), 10 (2006), 10 (2008),
and 09 (2009).
4See Freedom of Information Advisory
Opinions 36 (2001), 09 (2003), 03 (2004), 28 (2004),
09 (2005), 07 (2006), 07 (2007), and 10 (2008).
5The American Heritage Dictionary 666-667
(2d College ed. 1982). |