July 26, 2001

Ms. Maureen Kelley Corum
Executive Director, Waynesboro Downtown Development, Inc.
Waynesboro, 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 phone conversation of July 20, 2001.

Dear Ms. Corum:

You have asked whether organizations created by the Virginia Department of Housing and Community Development to help revitalize downtown areas are public bodies subject to the Virginia Freedom of Information Act (FOIA). You indicate that the Department of Housing and Community Development created the Virginia Main Street Community Program to assist in this revitalization effort. Programs are administered locally in cities and towns across the state, and each program is a private, nonprofit organization that works in conjunction with the locality in which it is located. The sources of funding vary from program to program. You explain, by way of example, that the program that you direct receives 100 percent of its operating budget from the City of Waynesboro. You indicate that a program in another location receives less than half of its operating budget from its locality, with the remainder of its budget comprised of member dues, donations, and money from other fundraising efforts. Your question turns on how to determine if some, or all, of the Main Street Community Programs are public bodies under FOIA.

Section 2.1-341 of the Code of Virginia defines a public body as any legislative body; any 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; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. (Emphasis added.) Whether the Main Street Community programs fall under this definition depends upon whether or not they are supported wholly or principally by public funds. While it is clear that the program that you direct would be a public body, because it is supported wholly, or 100 percent, by public funds, it is less clear what the statute means when it defines a public body as one supported principally by public funds.

FOIA does not define the word "principally." According to 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.¹ The policy of FOIA at § 2.1-340.1 dictates that [t]he provisions of the chapter shall be liberally construed to promote an increased awareness by all persons of governmental activity. These two principals must be used to determine when an entity would be supported principally by public funds.

In reviewing a similar issue as the one presented here, the Attorney General of Virginia found that the question of whether an entity is supported principally by public funds is a factual one. The Attorney General relied on the definition set forth in Webster's New Collegiate Dictionary (1979) of "principal" as most important, consequential, or influential. The opinion also noted the Black's Law Dictionary (5th ed. 1979) defined "principal" as chief; leading; most important or considerable; primary; original.²

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.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1. 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.

2. 1982-83 Op. Atty. Gen. Va. 719