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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-04-17
May
5, 2017
Douglas
Pons
Via Electronic Mail
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 March 16, 2017.
Dear
Mr. Pons:
You have asked whether the Greater Williamsburg Chamber
and Tourism Alliance (the Chamber) is a public body
subject to the Virginia Freedom of Information Act
(FOIA). As background, you stated that the Chamber
is an organization which supports local business and
performs tourism marketing for the Historic Triangle.
Further, you stated that the Chamber was not created
by a public body but has for many years been financially
supported, in part, by the three jurisdictions comprising
the Historic Triangle (James City County, York County,
and the City of Williamsburg). You explained that
the localities give money to the Chamber primarily
to support the Chamber’s tourism marketing functions.
You related that over the last several years, the
amount of the public funding provided has comprised
an increasingly greater share of the Chamber’s budget,
and that this year, the amount of funding received
from the Historic Triangle localities comprises 68%
of the Chamber's total budget. You also wrote that
the public funding is in the form of a general budget
appropriation, and is not provided pursuant to a service
agreement or any other form of contractual obligation.
Additionally, you noted that prior opinions from this
office have established a rule of thumb that an organization
would be considered a public body as that term is
defined in § 2.2-3701 if it receives two-thirds
or more of its funding from public funds.1
You then posed two questions: (1) whether the Chamber
would be considered a public body for purposes of
complying with the meeting and records requirements
of FOIA, and (2) whether the Chamber would cease to
be considered a public body subject to FOIA if the
percentage of their funding were to drop below 66%
of their total budget in the future.
The
general policy of FOIA set forth 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."
The policy statement goes on to direct that the provisions
of FOIA "shall be liberally construed to promote
an increased awareness by all persons of governmental
activities and afford every opportunity to citizens
to witness the operations of government." The
definition of "public body" in § 2.2-3701
includes various government entities as well as "other
organizations, corporations or agencies in the Commonwealth
supported wholly or principally by public funds."
You noted that in construing what was meant by "supported...principally
by public funds," this office has previously
opined that
an
entity that was supported principally by public
funds would receive its main source of money for
its operating budget from government sources. Construing
this in a liberal fashion, as directed by the policy
of FOIA, this means something less than 100 percent,
yet more than a simple majority of the money in
the budget. 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 principally by public
funds.2
That opinion went on to state that "the question
of whether an entity is supported principally by public
funds remains a question of fact, and an entity that
receives less than two-thirds of its funding from
government sources could still be considered a public
body." This office has applied the two-thirds
rule of thumb along with a case-by-case factual analysis
in subsequent opinions.3 In considering
various factual scenarios, this office has further
opined that "whether an entity is considered
a public body at any given time depends on the status
of the entity (e.g., whether it is wholly or principally
supported by public funds) at the time a request for
records is made under FOIA."4 Additionally,
this office has excluded money derived from arm's-length
contracts and competitive grants when considering
the source of money that would be considered "public
funds" for FOIA purposes.5 If money
from such arm's-length transactions were considered
public funds, it would have a chilling effect on the
willingness of private companies to contract with
government, as it would require private companies
to open their records to public scrutiny solely because
they entered into a contract with government.6
Research did not reveal any controlling opinions from
the Supreme Court of Virginia addressing these issues,
but at least two circuit court opinions have cited
the two-thirds rule of thumb offered by this office.7
The facts you presented are that the Chamber currently
receives 68% of its support from public funds, and
that those funds come from budget appropriations,
not arm's-length transactions. Applying the law to
those facts, the answer to your first question is
that the Chamber appears to be "supported...principally
by public funds" and therefore is a public body
subject to FOIA. Given the facts presented, the Chamber
must comply with FOIA's requirements for both public
meetings and public records. Your second question
asked whether the Chamber would cease to be a public
body should the Chamber's public funding drop below
two-thirds of its total budget at some point in the
future. As stated previously, the two-thirds rule
of thumb
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. [Freedom of Information
Advisory Opinion 36 (2001)] 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.
Without
knowing the precise proportions and sources of future
funding, it is not possible to opine whether the Chamber
would be considered a public body at any particular
time going forward. However, we can opine that if
the Chamber's public funding fell below two-thirds
of its total funding to the extent that public funds
were no longer the principle source of its support,
then the Chamber would cease to be considered 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
1See,
e.g., Freedom of Information Advisory Opinion
36 (2001).
2Id.
3See Freedom of Information Advisory
Opinions 01 (2015), 07 (2012), 10 (2008), 07 (2007),
07 (2006), 09 (2005), 28 (2004), 03 (2004), and 09
(2003).
4Freedom of Information Advisory Opinions
09 (2005) and 22 (2004).
5See, e.g., Freedom of Information
Advisory Opinions 01 (2015), 10 (2008), 06 (2004),
and 28 (2004).
6Freedom
of Information Advisory Opinion 10 (2008).
7Voice v. Appalachian Regional Community
Services, Inc., 89 Va. Cir. 284 (Buchanan County
2014); Wigand v. Wilkes, 65 Va. Cir. 437
(City of Norfolk 2004).
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