VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-09-24

November 19, 2024

Martin Dean
Goochland, Virginia
Request received via email

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 email of December 8, 2023.

Dear Mr. Dean:

You have requested an advisory opinion relative to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) on whether the Goochland County Volunteer Fire Rescue Association is considered a "public body" and therefore subject to FOIA.

Factual Background

As background information, the Goochland County Volunteer Fire Rescue Association, Inc., (the Association) was founded in 1951, was incorporated as a not-for-profit in the 1970s, and is currently registered as a § 501(c)(3) corporation. The Association is funded by the following two sources:

1. Donations from the community and interested parties; and

2. Payments via a memorandum of understanding (MOU) with Goochland County (the County) that consists of direct payments from the County to the Association and indirect payments, e.g., bills paid directly by the County for station utilities, maintenance on Association vehicles, personal protective equipment, etc.

You submitted a copy of the MOU between the County and the Association, effective July 1, 2018, that provides that, in furtherance of the parties' partnership to provide a safe and effective fire and rescue services operation, the County agrees to purchase or provide the following items:

• Vehicle fuel for apparatus;
• Telephone service for the stations;
• Office supplies for fire-rescue operations only;
• Routine trash removal for the stations (not including removal of bulk items);
• Janitorial supplies for operational and living areas (not including such supplies for fundraising activities, including room rentals);
• Operational medical director's stipend;
• Insurance for County-owned station, equipment, and apparatus;
• Electric, heat, water, and sewer services for stations; and
• Annual dinner and awards according to annual budget appropriations and County purchasing requirements.

The MOU also shows that the County agrees to purchase or provide the following items to the Association, including any repairs to, maintenance of, or replacement of such items:

• Apparatus as approved by the County fire-rescue chief;
• Operational uniforms and protective clothing;
• All operational equipment and materials;
• Station generators;
• Station fire alarm systems and monitoring;
• Computers, printers, copiers, scanners, and fax machines for operational uses only; and
• Station alerting systems.

The MOU further shows that the County will reimburse the Association for its receipts or paid invoices for the following items:

• Insurance, including vehicle, property, accident, fraud/embezzlement, medical, and disability; and
• Basic Internet service that conforms with County policy for content and speed, and, where available, basic satellite or cable television for the stations.

The MOU states that the County will continue to make training available to Association members and, at the discretion of the County fire-rescue chief and upon input from the respective district chief, reimburse individual Association members for completed training, including travel expenses.

Under the MOU, the Association, in furtherance of the parties' partnership to provide a safe and effective fire and rescue services operation and to support its independent fundraising and social activities, agrees to purchase or provide the following items:

• Office supplies for fundraising and nonoperational needs;
• Janitorial supplies for fundraising and nonoperational needs, including meeting room rentals;
• Satellite or cable television or Internet in excess of basic services;
• Association-specific apparel;
• Association treasurer salary; and
• Annual audit by a certified public accountant for the Association's books and records.

The Association also agrees to provide the County with copies of its insurance policies and annual audits. To the extent that insurance policies paid for by the Association provide proceeds for apparatus, equipment, or other items for which the County is responsible for maintenance, replacement, and repair, the Association agrees to remit those proceeds to the County.

Under the MOU, the Association also agrees to purchase or provide the following items, including any repairs to, maintenance of, or replacement of such items:

• Furniture at Association-owned stations;
• Building maintenance and upkeep, including electrical, mechanical, and plumbing systems at Association-owned stations or Association sheds or fixtures at the County-owned station. Building maintenance and upkeep also includes the roof, interior and exterior lighting, and interior and exterior paint;
• Parking lots at Association-owned stations, including snow and ice removal; and
• Any apparatus, equipment, and materials purchased by the Association for fundraising or social activities or purchased for operational use without the approval of the County's fire-rescue chief.

You stated in your email that the County operates combination departments "staffed with career and volunteer first responders" and that "career staff is first out for every call in the County with volunteers sometimes adding to manpower." You also wrote that stations are staffed 24 hours a day, seven days a week "with career staff and supplemented from time to time with volunteers." You explained that the "[v]olunteers sometimes stay at the station but generally maintain availability from their homes." In addition, you explained that "Goochland is not unique in that the volunteer compliment has been declining over the past many years."

You explained that the Association owns and operates five fire stations in Goochland County and the County owns one station. You stated that "[i]t is the purview of the [Goochland] County Fire Rescue Department to specify, schedule the purchase, fund and execute the purchase, title, insure, fuel and maintain the vehicles." In addition, "[t]he vehicles do not appear as assets of the Association and no money for them flows through the Association" and that "[t]he same can be said for the equipment that is used on the vehicles."

You provided a copy of the Association's current bylaws that provide the manner and method by which the Association is organized and operates. The bylaws also show that the Association's purpose includes the solicitation of funds for the purposes of the organization and provisions to build, own, and maintain buildings and equipment to be used in connection with the purposes of the organization but does not require the Association to provide "apparatus or vehicles, only people, buildings and equipment."

You also submitted a copy of Internal Revenue Service (IRS) Form 990 from 2021 that details the Association's finances. You stated that the "Association files annual 990 forms with the IRS which generally shows funding from Goochland County at under fifty percent (50%)." The provided Form 990 shows that the Association's revenue in 2021 was $286,606 from "fundraising events"; $171,588 from "government grants"; and $198,698 from "all other contributions, gifts, grants, and similar amounts not included above." According to the form, the Association's revenue for 2021 totaled $656,892. Thus, $370,286, or approximately 56 percent, of the Association's revenue appears to derive from some form of grant. However, it was not clear from the information provided whether this revenue was from competitive grants, such as procurement contracts for services, or from noncompetitive grants, such as governmental appropriations.

You wrote in your email that the Association would like to know "if there is a specific percentage threshold applicable in making a determination of whether FOIA provisions would apply to an entity supported wholly or principally by public funds."

Analysis

FOIA policy as stated in subsection B of § 2.2-3700 of the Code of Virginia provides the following:

By enacting this chapter, the General Assembly ensures 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 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. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

FOIA policy in this subsection also provides the following:

The provisions of this chapter 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. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

A first step in understanding whether FOIA applies to a specific entity is making a determination as to whether such entity meets the definition of a "public body" under FOIA. Pursuant to § 2.2-3701 of the Code of Virginia, a "public body" means the following:

[A]ny legislative body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds. It shall include (i) the Virginia Birth-Related Neurological Injury Compensation Program and its board of directors established pursuant to Chapter 50 (§ 38.2-5000 et seq.) of Title 38.2 and (ii) 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. (emphasis added)

In this matter, the relevant language in the definition for a "public body" is "other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds." This specific phrase requires further consideration and analysis in order to answer fully the question presented by the Association.

In many prior advisory opinions, this office has been asked to determine whether a specific entity "supported wholly or principally by public funds" was a "public body" under FOIA.¹ The Supreme Court of Virginia has previously expressed the following:

Under fundamental rules of statutory construction, each statute must be examined in its entirety, rather than by isolating particular words or phrases. The legislature's intent must be determined from the words used, unless a literal construction would yield an absurd result. Thus, when the language employed in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language.²

Additionally, the Supreme Court of Virginia has declared that "[e]very part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary."³ When interpreting statutory language in the past, this office has acknowledged that "if there is no question of interpretation and the statutory language at issue is clear and unambiguous, we follow its plain meaning."⁴ As FOIA does not define "principally," this office has also opined that when appropriate "we also apply rules of statutory construction as needed."⁵ The Supreme Court of Virginia has stated that "when a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the language used."⁶ Thus, in accordance with "statutory construction rules, in the absence of a statutory definition, a term is considered to have its ordinary meaning, given the context in which it is used."⁷

In a 2001 opinion, this office wrote:

Reading the definition of a public body, with the word "principally" being used in conjunction with the word "wholly," it would appear 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.

Despite this general guideline, 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. By way of example, consider an entity that receives 55 percent of its funding from a government source. If it received the remaining 45 percent of its funding from one single private source, then it would not appear to be principally supported by public funds. Relying back on the definitions of "principal" set forth in the Attorney General's opinion, the government funds would not be the most important or primary source of money in its operating budget. However, consider how the outcome may change if the remaining 45 percent of the funding consisted of small amounts of money from many different sources. In this second scenario, the 55 percent of the support from a government source might be the most important or primary source of funds, if the funding from each of the other sources only represented a small fraction of the overall budget.

In conclusion, FOIA does not define what it means for a public body to be supported . . . principally by public funds. In applying ordinary meaning of the word "principal," in light of the liberal construction rule set forth in the policy of FOIA, the general guideline that emerges is that an entity is supported principally by public funds if it receives two-thirds of its funding from a government source. However, this two-thirds standard is merely a guideline, and not an absolute rule. An entity that receives less than two-thirds of its funding from a government source could still nonetheless qualify as a public body. The question of whether an entity is supported principally by public funds remains a question of fact, and one necessarily determined on a case-by-case basis. One must examine the amount of the public funding in totality with the amount of funding from each other source in order to reach a conclusion.⁸

As a general principle for FOIA, "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."⁹ However, previously issued advisory opinions "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."¹⁰ For instance, in The Voice v. Appalachian Regional Community Services, Inc., the Circuit Court of Buchanan County, citing previous FOIA Council opinions, determined that "whether an organization is 'supported . . . principally by public funds' depends on the total contribution from public funds as measured against the number and magnitude of individual private contributions."¹¹ The Circuit Court of Buchanan County held that "an organization was a public body subject to FOIA because it received at least 54.94 percent of its funds from a county in the form of three checks, and the rest of its support came from 'a number of smaller payments from a variety of private sources.'"¹²

This office has also received on multiple occasions specific requests to consider whether a volunteer rescue squad or fire department would be considered a public body under FOIA.¹³ In an early opinion from 2000, this office determined based upon the facts presented that "it does not appear that a volunteer rescue squad that is supported largely by public donations would fall under the definition of a public body" because "[p]ublic funding would not include voluntary, private donations, either from individuals or an organization such as the United Way."¹⁴ "Public funds, as used in the definition, refers to government expenditures of money to support agencies or organizations" and to be considered a public body "an organization would have to be supported 'wholly or principally' by money received from a state or local government."¹⁵ Conversely, in an opinion from 2003, this office opined that the Appalachia Volunteer Fire Department appeared to be a public body that "must comply with the procedures set forth in FOIA regarding access to public records and meetings" because it received "nearly 90 percent of its funding from state and local government sources, with the remaining ten percent of its funds coming from donations and contracts."¹⁶

In other opinions, this office considered "whether payments made under a public contract should be used in determining whether a private entity is principally supported by public funds."¹⁷ "The [FOIA] Council has previously opined that money received through [competitive] grants 'is more akin to a procurement transaction than an appropriation of funds,' and concluded that grant money 'should not be included in determining whether [a private entity] is wholly or principally supported by public funds.'"¹⁸ Additionally, "money received from competitive public grants and from procurement transactions should not be considered public funds for the purpose of determining whether the entity is a public body subject to FOIA." "Competitive grants are akin to public contracts negotiated between independent parties at arms' length, and are not to be considered public funds for purposes of determining whether an entity is a public body."²⁰

"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."²¹ "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."²² For "procurement transactions, the public has a right to find out how much the government spent and what goods or services the government received" and "[t]hose records can be obtained from the government."²³ "In the case of procurements and grants, a requester can generally obtain financial records from the public body on one side of the transaction without seeking records from the private party on the other side of the transaction."²⁴ "By contrast, money given through government largess to support a private organization, corporation, or agency without the provision of goods or services in return should be treated differently under FOIA."²⁵ Noncompetitive grants "that are more akin to appropriations or an exercise of governmental largesse may be considered public funds for FOIA purposes."²⁶

When requested to consider various factual scenarios on whether an entity is a public body wholly or principally supported by public funds, this office has previously opined that a determination "depends on the status of the entity at the time a request for records is made under FOIA."²⁷ Variable measures like procurement transaction proceeds that may vary month to month "should not be used to determine an entity's level of public funding" because "the use of such variable measures may lead to the untenable result that the entity may be subject to FOIA one month then exempt from FOIA the next."²⁸ The information from the Association's Form 990 from 2021 appears to show that approximately 56 percent of the Association's revenue for that year comes from some form of grant, but the information does not clearly provide whether it was from competitive or noncompetitive grants. Furthermore, this office previously opined 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," but "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."²⁹ Because it is not clear what type of grant money is received by the Association, a determination cannot be made with any certainty as to whether the money received by the Association should be considered public funds.³⁰ Therefore, this office is unable to provide a conclusive response to your question about the Association's status as a public body.

If the Association's financial support in 2021 is determined to come mostly from noncompetitive grants — basically government appropriations or largesse — then following the two-thirds rule of thumb, the Association would usually be considered a public body supported principally by public funds at that time.³¹ However, if the financial support of the Association is revealed to come from competitive grants or contracts for services, then generally the Association would seem not to be supported principally by public funds at that time.³² Nevertheless, this office lacks the information and "the financial expertise to fully and accurately determine" the Association's financial status at the time of your request in 2024.³³ Furthermore, "while this office is authorized by statute to provide advisory opinions regarding FOIA, we do not have the authority to make binding factual determinations regarding the funding provided to" the Association. "³⁴This office is not a fact-finding body or trier of fact."³⁵

Although the material you provided was useful regarding certain aspects of the Association's funding mechanisms in 2021, it does not include the necessary information to describe accurately the Association's financial support at the time of your request in 2023. Absent the applicable information, this office is unable to conclude definitively whether the Association is supported principally by public funds and whether it should be treated as a public body subject to FOIA. You may consider seeking further information from the public bodies, such as the County, about the amount and type of funding annually provided to the Association. You may also wish to consult your own legal counsel to provide you further guidance regarding the financial and legal status of the Association. Hopefully, this opinion provides a thorough explanation of the FOIA Council's interpretation of "supported wholly or principally by public funds" under FOIA and serves as a beneficial guide to your organization.

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Joseph Underwood
Senior Attorney

Alan Gernhardt
Executive Director

¹See Freedom of Information Advisory Opinions 02 (2023), 05 (2017), 01 (2015), 07 (2012), 10 (2008), 07 (2007), 07 (2006), 09 (2005), 28 (2004), 06 (2004), 03 (2004), 09 (2003), 36 (2001), and 16 (2000).
²Freedom of Information Advisory Opinions 06 (2024) and 09 (2019) (citing Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal citations and quotations omitted)).
³Id. (citing Davis v. MKR Development, LLC, 295 Va. 488, 494, 814 S.E.2d 179, 182 (2018) (quoting City of Richmond v. Virginia Elec. & Power Co., 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016)).
⁴Freedom of Information Advisory Opinion 02 (2021) See, e.g., Cole v. Smyth County Bd. of Supervisors, 298 Va. 625, 636, 842 S.E.2d 389, 394 (2020) ("In construing statutory language, we are bound by the plain meaning of clear and unambiguous language." (quoting White Dog Publishing, Inc. v. Culpeper County Bd. of Supervisors, 272 Va. 377, 386, 634 S.E.2d 334 (2006))).
⁵Freedom of Information Advisory Opinion 09 (2019).
⁶Id. (citing American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 341, 756 S.E.2d 435, 441 (2014)).
⁷Freedom of Information Advisory Opinion 36 (2001) (citing Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 Va. 655, 261 S.E. 2d 532 (1980); 1991 Op. Atty. Gen. Va. 413; 1986-87 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., § 46:01); See also Freedom of Information Advisory Opinion 09 (2019) (citing American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 341, 756 S.E.2d 435, 441 (2014) (quoting Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998))).
⁸Freedom of Information Advisory Opinion 36 (2001).
⁹See Freedom of Information Advisory Opinions 02 (2023), 05 (2017), 01 (2015), 07 (2012), 10 (2008), 07 (2007), 07 (2006), 09 (2005), 28 (2004), 06 (2004), 03 (2004), 09 (2003), 36 (2001), and 16 (2000).
¹⁰Id.
¹¹The Voice v. Appalachian Regional Community Services, Inc., 89 Va. Cir. 284 (Buchanan County 2014) (finding that an organization that received at least 54.94 percent of its support from public funds was a public body); Wigand v. Wilkes, 65 Va. Cir. 437 (City of Norfolk 2004) (finding that a corporation that received 25 percent of its support from public funds was not a public body).
¹²The Voice, 89 Va. Cir. at 287.
¹³See Freedom of Information Advisory Opinions 09 (2003) and 16 (2000).
¹⁴Freedom of Information Advisory Opinion 16 (2000).
¹⁵Id.
¹⁶Freedom of Information Advisory Opinion 09 (2003).
¹⁷Freedom of Information Advisory Opinions 10 (2008), 28 (2004), and 06 (2004).
¹⁸Id.
¹⁹Freedom of Information Advisory Opinions 09 (2005), 28 (2004) (regarding procurement transactions), and 06 (2004) (regarding grants); see Freedom of Information Advisory Opinion 07 (2006).
²⁰Freedom of Information Advisory Opinions 07 (2007), 07 (2006), 28 (2004), and 06 (2004).
²¹Freedom of Information Advisory Opinion 28 (2004).
²²See Freedom of Information Advisory Opinions 05 (2017), 10 (2008), and 28 (2004).
²³Freedom of Information Advisory Opinion 28 (2004).
²⁴Freedom of Information Advisory Opinions 09 (2005), 28 (2004), and 06 (2004).
²⁵Freedom of Information Advisory Opinion 28 (2004).
²⁶Freedom of Information Advisory Opinions 10 (2008) and 07 (2007).
²⁷Freedom of Information Advisory Opinions 05 (2017), 09 (2005), and 22 (2004).
²⁸Freedom of Information Advisory Opinions 09 (2005) and 28 (2004).
²⁹Freedom of Information Advisory Opinions 01 (2015) and 36 (2001).
³⁰See Freedom of Information Advisory Opinion 05 (2017).
³¹See Freedom of Information Advisory Opinions 05 (2017), 10 (2008), and 07 (2007).
³²Id.
³³Freedom of Information Advisory Opinion 09 (2005).
³⁴Id.
³⁵Freedom of Information Advisory Opinions 04 (2024), 01 (2023), 01 (2022), 01 (2021), 05 (2017), 03 (2016), 04 (2015), 02 (2015), 02 (2013), and 09 (2005).

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