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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-04-13
May
17, 2013
Lynn
Julia Pendlebury Colby
Alexandria, Virginia
The staff of the Freedom of Information Advisory
Council is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based upon the
information presented in our telephone conversation
March 1, 2013, your electronic mail messages dated
February 28, 2013, and March 31, 2013, and your letter
received April 10, 2013.
Dear
Ms. Colby:
You have asked whether the Alexandria Old Town Farmers
Market Rules Committee (the Rules Committee) is a
public body subject to the meetings requirements of
the Virginia Freedom of Information Act (FOIA). As
background, you indicated that the Rules Committee
was created under the Old Town Farmer's Market Rules
and Regulations adopted by the City Council in 1989.
Specifically, you included minutes of the May 9, 1989
regular meeting of the City Council that state that
the City Council unanimously approved the regulations
(Attachment 1) of the City Manager's report and authorized
the City Manager to implement them on May 20, 1989.
You also included the May 4, 1989 memorandum from
the City Manager to the Mayor and City Council that
was referenced in those minutes (the 1989 memorandum).
The 1989 memorandum indicates that the Farmers' Market
is a tradition that had been going on for 240 years
at that date. It appears that the position of Market
Master already existed at that time, but due to growth
in the market over the prior five years, the City
Manager felt it would be helpful to adopt new rules
and regulations and to establish a Rules Committee.
The 1989 memorandum states that the City Manager
convened
a committee to work on the matter during the winter
with a view toward having a revised regulation ready
for implementation in the Summer of 1989. The proposed
regulation is the result of that effort and reflects
the combined work of the City Attorney's Office,
General Services, Finance, and Health Departments,
as well as members of my staff.
The
proposed Farmers Market Regulations attached to the
1989 memorandum define the Rules Committee as follows:
The
Rules Committee of the Farmers Market will consist
of two vendor representatives who will be selected
biennially in July by a vote of the vendors, the
Marker Master, the Director of the General Services
Department, a representative of the Finance Director,
and a representative of the Health Department. The
Committee will meet to review rule changes, vendor
appeals, product eligibility issues, disciplinary
actions/suspensions, and issues that the City Manager
wishes to resolve.
Therefore
it appears that the Rules Committee is a formal version
of the informal committee that the City Manager originally
assembled. You also provided a copy of a memorandum
regarding "Amendments to Farmers' Market Regulations"
from the City Manager to the Mayor and City Council
dated February 3, 1992 (the 1992 memorandum), which
described the Rules Committee using identical language.
The same memorandum indicated that the Market Master
is a staff person designated by the General Services
Department who assigns stalls, collects rents,
assists vendors and visitors, and enforces the City's
regulations. In the same paragraph, the memorandum
states that the Rules Committee has worked to
resolve conflicts between vendors, to rule on eligibility
of products by applicant vendors, and to initiate
ideas for improvements to the Market. Therefore
it appears that the Rules Committee was in operation
for some time from 1989 until the early 1990's, at
least.
However, it appears that sometime after this 1992
memorandum, the City may have stopped using the Rules
Committee, as you indicated that to the best of your
knowledge, the Rules Committee did not exist until
earlier this year. You also indicated that the Market
Master quit sometime in 2010 or 2011, but the Farmers'
Market continued to operate with neither a Market
Master nor a Rules Committee. You stated that a new
Market Master was appointed in October, 2012 and in
December, 2012, she announced that the Rules Committee
would be convened after the vendors elected two representatives
in January, 2013. You further stated that the Rules
Committee met for the first time on February 7, 2013,
and again on February 21, 2013, but that no notice
was given and public participation was not allowed.
Additionally, you stated that the Market Master announced
that vendors would be allowed to attend and observe
the third Rules Committee meeting on March 7, 2013.
You added that while vendors have been allowed to
observe Rules Committee meetings since that date,
the general public has not, and vendors are not allowed
to voice their concerns at the meetings. Given this
background, you asked whether the Rules Committee
is a public body subject to FOIA that is required
to hold public meetings.
The purpose of FOIA expressed in subsection B of §
2.2-3700 is to ensure the people of the Commonwealth
... 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, in relevant part, 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,
as well as 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. The City Council itself
is a public body under the first part of this definition,
as it is a municipal council of a political subdivision
of the Commonwealth. Therefore the question to be
addressed is whether the Rules Committee is a committee,
subcommittee, or other entity however designated,
of the [City Council] created to perform delegated
functions of the [City Council] or to advise the [City
Council].
On the face of it, given the background described
above, it does not appear that the Rules Committee
advises the City Council directly. Instead, it appears
that the Rules Committee advises and answers to the
City Manager. Observe that the 1989 memorandum stated
that by approving the Farmers' Market Regulations,
the City Council will be exercising its authority
under Section 2.04 of the City Charter to make regulations
"to establish markets in the City and regulate
the same..." Notably, one of the suggested
proposals in the 1992 memorandum is
that
the City Manager be authorized to approve minor
future amendments of rules and regulations affecting
the Farmers' Market. This authorization would allow
the City Manager to quickly respond to some of the
unanticipated situations that can develop with little
notice....If an issue arose, the Rules Committee
would meet to prepare a proposal, a proposed rule
change would then be posted for vendors to review,
and the City Manager would render a final decision.
Examples of rules that could be necessary would
be regulations regarding type of stalls, regulations
necessitated for safety, changes needed in labeling,
etc.
Thus,
it appears that the City Council exercised its authority
to create the rules and regulations governing the
operation of the Farmers' Market, and to establish
the Rules Committee to help advise the City Manager.
It is not clear whether all the suggestions in the
1992 memorandum were adopted, but the facts presented
appear to indicate that if there was any delegation
of the City Council's authority to regulate the Farmers'
Market, that delegation was to the City Manager, not
to the Rules Committee. Furthermore, it does not appear
that the Rules Committee itself advises the City Council.
Therefore it appears that the Rules Committee does
not meet the definition of public body because
it is not a committee ... of the [City Council]
created to perform delegated functions of the [City
Council] or to advise the [City Council].
However, while the Rules Committee does not appear
to be a public body for meetings purposes under FOIA,
I would note that the definition of public records
in § 2.2-3701 includes all writings and recordings
... 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. Following this definition,
records of the Rules Committee concerning the transaction
of public business - i.e., records regarding the Farmers'
Market or any other public business before the Rules
Committee - would be subject to FOIA. You stated that
you have asked the City for documents related to the
Rules Committee meetings, but that the responses have
always been late. You did not provide any other details
about your records requests, so I cannot offer any
more specific opinion based on this limited description.
However, I would note that subsection E of §
2.2-3713 provides that [a]ny failure by a public
body to follow the procedures established by this
chapter shall be presumed to be a violation of this
chapter, and subsection D of the same section
states that a single instance of denial of the
rights and privileges conferred by this chapter shall
be sufficient to invoke the remedies granted herein.
I would suggest for the future that you direct your
requests to the office of the City Manager, and I
would remind the City that it is required to comply
with the procedural requirements of FOIA in its responses.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
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