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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-07-13
July
30, 2013
Glenn
Oder
Executive Director
Fort Monroe Authority
Fort Monroe, 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 your letter (undated).
Dear
Mr. Oder:
You have asked whether certain committees and advisory
groups are public bodies subject to the open meeting
requirements of the Virginia Freedom of Information
Act (FOIA). As background, you indicated that the
Fort Monroe Authority (the Authority) was created
by the General Assembly by statute and is governed
by a Board of Trustees (the Board). The Authority
has adopted by-laws, under which the Board may create
standing committees. Members of those committees are
appointed by the Chairman of the Board, and at least
two members of each standing committee must be Trustees.
The by-laws also provide for the creation of ad
hoc committees by the Chair, the Board, or the
Executive Committee of the Board; such ad hoc
committees must include at least one Trustee. Additionally,
the by-laws allow advisory groups to be created by
the Board or by the Chairman of the Board (the Chair).
You stated that such advisory groups are not considered
to be committees of the Board, and do not require
any Trustees to be appointed as members. Finally,
you stated that in your capacity as Executive Director
of the Authority, you have appointed advisory groups
consisting solely of citizen volunteers. You stated
that the Authority has appointed a Finance Committee,
a Planning Advisory Group, and an Economic Advisory
Team, each of which is a committee comprised of two
Trustees and a number of citizen members. Additional
facts will be set forth as appropriate below.
The 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 include
in relevant parts
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; ... 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.
Applying
that definition to the facts presented, it is clear
that the Authority itself is a public body under the
first clause quoted because it is an authority
and a political subdivision of the Commonwealth
established by statute.1 The Board would
likewise be a public body under the first clause of
the definition as the board...of [a] political
subdivision of the Commonwealth. While the first
clause would include the Authority and its Board,
it would not include the various committees and advisory
groups about which you inquired. In examining those
entities, we must turn to the second and third clauses
of the definition, as quoted above.
The second clause of the definition includes as public
bodies other organizations, corporations or agencies
in the Commonwealth supported wholly or principally
by public funds. In this instance the facts you
have described do not indicate that any of the committees
or advisory groups receive public funds. You explicitly
stated that the citizen members serve as volunteers
only; they are not paid for their participation, nor
do they receive reimbursement for expenses. Given
this factual background, we can only conclude that
the second clause concerning support by public funds
does not apply to the committees or advisory groups
you have described. However, it appears that the committees
and advisory groups may fall within the definition
of public body under the third clause, 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.
Before addressing each of the different committees
and advisory groups you have described, I note that
in describing these entities you explicitly stated
the minimum number of Trustees that must be appointed
to each body, and that each includes citizen members.
The fact that there are citizen members on such committees
or advisory groups does not change their status under
FOIA because the definition of public body
specifies that it shall not exclude any such committee,
subcommittee or entity because it has private sector
or citizen members. Once a citizen is appointed
as a member of a committee or advisory group, then
he or she is a member and must be counted as such,
just as a Trustee would be counted.
You also stated that the Authority's by-laws provide
that notice of committee meetings must be provided
for any committee meeting at which three or more Trustees
are present. This notice provision would appear to
run counter to the provisions of FOIA. FOIA defines
a meeting to include
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.
This
definition does not differentiate between different
types or categories of members (whether Trustees or
citizen members, voting or non-voting, elected or
appointed or ex officio, etc.). Therefore, when applying
this definition to meetings of the Authority's various
committees, one must count citizen members as well
as Trustees when determining whether a sufficient
number is present for the gathering to constitute
a meeting under FOIA. It is not proper to count only
the Trustees and ignore the presence of citizen members.
A gathering of any three or more members, or a quorum
if less than three - whether Trustees or citizens
- of a committee or advisory group would be a meeting
subject to FOIA, if the committee or advisory group
is a public body subject to FOIA.2
Turning now to the different entities you described,
you stated that "standing committees" are
established by resolution of the Board, with members
appointed by the Chair to include at least two Trustees.
You did not explicitly state that such committees
carry out a delegated function of the Board, or advise
the Board, but presuming that they do, then they would
appear to fit squarely within the definition of public
body as a committee ... of the [Board]
created to perform delegated functions of the
[Board] or to advise the [Board]. Therefore
a standing committee of the Board is a public body
subject to FOIA for both public meetings and public
records purposes.
You stated that "ad hoc committees"
are established by the Chair, the Board, or the Executive
Committee, and must include at least one Trustee as
a member. For FOIA purposes, an ad hoc committee
established by the Board to perform a delegated function
of the Board or to advise the Board would be a public
body subject to FOIA, just as a standing committee
would be. Similarly, it appears from the facts described
that if the Chair were to establish an ad hoc
committee, it would be on behalf of the Board, because
the Chair would be acting pursuant to the Board's
by-laws under the authority of the Board. Again, such
an ad hoc committee would be a public body
of the Board created to perform a delegated function
of the Board or to advise the Board, even though it
was appointed by the Chair, because ultimately it
is performing a delegated function of the Board or
advising the Board. Regarding ad hoc committees
established by the Executive Committee, it was not
stated explicitly but it is presumed that the Executive
Committee is itself a standing committee, and therefore
a public body subject to FOIA as described above.
An ad hoc committee established by the Executive
Committee would therefore be a public body as a committee
or subcommittee of the Executive Committee created
to perform a delegated function of the Executive Committee
or to advise the Executive Committee. In each of these
instances, it would appear that an ad hoc
committee would be a public body subject to FOIA for
both public meetings and public records purposes.
However, there is one other possibility, under which
an ad hoc committee would not be a public
body for meetings purposes. Prior advisory opinions
from this office and the Office of the Attorney General
have determined that similar committees created by
a city mayor to advise the mayor was not a public
body because it was not created by a public
body, does not perform delegated functions of a public
body, does not advise a public body, and does not
receive public funding.3 The same
reasoning would apply if the Chair were to establish
an ad hoc committee to act on behalf of the
Chair or to advise the Chair, rather than to perform
a delegated function of the Board or to advise the
Board. In that situation, such an ad hoc
committee would not be subject to the meetings rules
of FOIA, although any records it prepared, owned or
possessed in the transaction of public business would
be public records.4
You also described two different types of advisory
groups. The first would be advisory groups created
by the Board or the Chair pursuant to the by-laws.
You stated that the by-laws specifically provide that
such groups are not Board committees and do not require
that any Trustees be appointed to them. The same reasoning
as applies to ad hoc committees would apply
to such an advisory group: it would be a public body
subject to the meetings rules of FOIA if it performs
a delegated function of the Board or advises the Board,
but not if it acts solely on behalf of the Chair.
Again, records prepared, possessed, or owned by the
advisory group in the transaction of public business
would be public records subject to FOIA, regardless
of whether the advisory group is also subject to the
meeting requirements of FOIA.
The second type of advisory group is that which you
have appointed in your capacity as Executive Director
of the Authority. Such an advisory group created to
advise you, rather than to advise the Board, would
not be a public body subject to the meeting requirements
of FOIA. We have previously considered similar situations.
For example, we have stated that generally, a public
employee is not a public body, and neither
is an advisory group appointed by a public employee
to advise him or her. To fit within the terms of the
definition of public body, an entity must
be of the public body created
to perform delegated functions of the public
body or to advise the public body.
[Emphasis added.] In the prior opinion, the advisory
group was an entity of a public employee created to
advise the public employee. Those facts do not meet
the terms of the definition; given those facts, the
group was not a public body. However, while
it was not a public body for FOIA meetings
purposes, the group's records would be public
records subject to FOIA if they are in the transaction
of public business.5 This reasoning is
much the same as when an individual member of a public
body, such as the Chair, appoints such a group to
act on his or her behalf, rather than on behalf of
the public body as a whole, as described above. This
same reasoning that applies to public employees and
individual members of public bodies would also apply
to appointed public officials. The key distinction
is that the group in question was created by an individual
to perform a delegated function or to advise the individual,
rather than being an entity of a public body created
to perform a delegated function or to advise the body.
Finally, you specifically asked about the Finance
Committee, the Planning Advisory Group, and the Economic
Advisory Team. You mentioned the number of Trustees
and uncompensated citizen members; as described above,
for FOIA purposes, there is no distinction between
different types or categories of members. You also
noted that "an area of concern is that these
groups and committees are created by a public body
to advise it on matters specifically related to the
business of that public body." If that is the
case for each of these bodies, then all of them would
be public bodies subject to FOIA, as described above.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Va.
Code § 2.2-2336.
2See, e.g., Freedom of Information
Advisory Opinions 08 (2008), 10 (2005), and 24 (2001)
(each considering whether various entities with citizen
members are public bodies under FOIA).
3Freedom of Information Advisory Opinion
08 (2008); 1978-1979 Op. Att'y Gen. Va. 316A.
4Va. Code § 2.2-3701 (definition of
public records).
5Freedom of Information Advisory Opinion
11 (2009); see also Freedom of Information
Advisory Opinion 12 (2009). |