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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-15
March
17, 2015
Aaron
W. Graves, Esq.
President, Rockingham County/City of Harrisonburg
SPCA
Harrisonburg, 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 October 29, 2014
and February 4 , 2015.
Dear
Mr. Graves:
You have asked whether the Rockingham County/City
of Harrisonburg Society for the Prevention of Cruelty
to Animals (RHSPCA) is a public body subject to the
provisions of the Virginia Freedom of Information
Act (FOIA). As background, you stated that the RHSPCA
is a private nonprofit that receives 56% of its funding
from government sources, pursuant to contracts to
run an animal shelter on behalf of Rockingham County
and the City of Harrisonburg. You added that RHSPCA
does not act as an arm of any local governing bodies
and that RHSPCA "employees don't wear uniforms,
don't have police style vehicles and do not have arrest
powers nor issue a summons." You stated that
animal control functions for the localities are handled
by the City of Harrisonburg Police Department and
the Rockingham County Sheriff's Office. It is my understanding
that RHSPCA performs no other services or functions
on behalf of the City or the County except running
the animal shelter, nor does RHSPCA get any other
support or use any other City or County resources
or equipment.
The policy of FOIA enacted in subsection B of §
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. That policy
goes on to state that [t]he affairs of government
are not intended to be conducted in an atmosphere
of secrecy since at all times the public is to be
the beneficiary of any action taken at any level of
government. The definition of public body in
§ 2.2-3701 includes, among other types of entities,
other organizations, corporations or agencies
in the Commonwealth supported wholly or principally
by public funds. This office has previously opined
that as a general rule, one could construe that an
entity that received at least two-thirds, or 66.6
percent, of its operating budget from government sources
would be supported wholly or principally by public
funds.1 However, the opinion cautioned
that the two-thirds rule is merely a guideline, and
that ultimately the question of whether an entity
is supported principally by public funds is a question
of fact that must be decided on a case-by-case basis.
That opinion also postulated that if 55 percent of
the budget came from public funds and 45 percent from
another single source, then the public funds would
not be the principal source. However, if the 45 percent
came from a number of sources, each representing a
relatively small fraction of the overall budget, then
the 55 percent from public funds would be the principal
source.2
This
office has applied those principles in considering
whether a different SPCA was subject to FOIA in two
prior opinions, each of which reached a different
conclusion based on different facts presented.3
The first opinion concluded that the SPCA was subject
to FOIA for both records and meetings purposes.4
The facts presented in that opinion were that in addition
to receiving 63% of its support from public funds,
the SPCA in question was acting as an agent of four
localities in running an animal shelter, and SPCA
employees were also the animal control officers for
the localities. The first opinion concluded that the
SPCA was acting as an agent of the localities for
records purposes because the definition of public
record in § 2.2-3701 includes all writings
and recordings... however stored, and 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. [Emphasis added.] As stated
in the first opinion, the law contemplates that public
records for purposes of FOIA includes more than just
records in the physical custody of a public body,
it also includes records held by an agent of a public
body. This office has previously reasoned the physical
possession of a record by a public body is not the
only criterion as to a whether a record is subject
to FOIA.5 Animal care laws outside FOIA
require counties and cities to have animal control
officers, and the SPCA was carrying out these functions
as an agent of the localities involved.6
The SPCA also fell under the definition of a public
body for meetings purposes to the extent it was discussing
animal control as an arm of the localities, even though
the 63 percent funding it received from government
sources was shy of the general two-thirds rule for
determining principal funding.7
In
the second opinion the conclusion was that the SPCA
was not a public body subject to FOIA.8
The facts presented were that the amount of funding
from public sources was approximately 59.5%, but varied
from month to month depending on how many animals
were in the shelter, pursuant to the contract the
SPCA had with the localities to provide animal shelter
services. It was determined that the receipt by a
private entity of public money derived from arm's
length transactions, without any other source of public
funds, should not be included in determining the private
entity's status as a public body under FOIA. Additionally,
the SPCA no longer employed animal control officers
or otherwise acted as an arm of the local governing
bodies. Based on those facts, the second opinion concluded
that the SPCA was not a public body subject to FOIA.9
Applying
the same analysis to the facts you have presented,
the RHSPCA is most akin to the second 2004 opinion.
You have stated that RHSPCA receives 56% of its support
from public funds, which is clearly less than the
two-thirds rule of thumb to be considered the principal
source of support. You confirmed that those funds
are payments RHSPCA receives pursuant to the contracts
with the City and County to provide animal shelter
services. As stated in the second 2004 opinion, a
private entity does not become a public body solely
because the private entity provides goods or services
to a public body through a procurement transaction.
Additionally, you also confirmed that RHSPCA does
not carry out any animal control functions on behalf
of the localities. Therefore, following the reasoning
of the second 2004 opinion, RHSPCA is not a public
body subject to FOIA. However, please keep in mind
that as described in the first 2004 opinion, if RHSPCA
acts as an agent of the localities, RHSPCA may hold
public records, and in any case, there are separate
records keeping requirements under animal control
laws outside of FOIA that would still apply.10
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Freedom
of Information Advisory Opinion 36 (2001).
2Id.
3Freedom of Information Advisory Opinions
03 (2004) and 28 (2004).
4Freedom of Information Advisory Opinion
03 (2004).
5Freedom of Information Advisory Opinion
41 (2001).
6The 2004 opinions referred to former
Title 3.1; equivalent provisions regarding animal control
officers and animal shelter records requirements are
now found in the Comprehensive Animal Care Laws (§§
3.2-6500 et seq.).
7Freedom of Information Advisory Opinion
03 (2004).
8Freedom of Information Advisory Opinion
28 (2004).
9Id.
10Supra,
n. 6.
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