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September 4, 2001
Mr. George Baker
Chairperson, Waynesboro Tourism Steering Committee
Waynesboro, Virginia
Ms. Iris Karl
Member, Waynesboro Tourism Steering Committee
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 a phone conversation of June 19,
2001.
Dear Mr. Baker and Ms. Karl:
You have asked a question concerning the application of the
Virginia Freedom of Information Act to a tourism program run by the
Augusta County Chamber of Commerce ("the Chamber"). You indicate
that the Chamber manages the tourism program for the City of
Waynesboro, and that the program is funded exclusively with public
money. In addition, you state that the Chamber runs the tourism
information center, a duty delegated to it by the city council.
When records relating to these two activities were requested from
the city council, you indicate that the council responded that such
records were in the possession of the Chamber, and thus the records
were not provided.
Subsection A of § 2.1-342 of the Code of Virginia requires
that [e]xcept as otherwise specifically provided by law, all
public records shall be open to inspection and copying by any
citizens of the Commonwealth.1
FOIA defines a public record at § 2.1-341 as all writings
and recordings ... prepared or owned by, or in the possession of a
public body or its officers, employees or agents in the
transaction of public business.2
(Emphasis added).
In the facts that you have presented, the Chamber does not
appear to be a public body under FOIA. FOIA defines a public body
at § 2.1-341 to include organizations, corporations or
agencies in the Commonwealth supported wholly or principally by
public funds. It shall include any committee, subcommittee of the
public body created to perform delegated functions of the public
body or to advise the public body.3 It does not appear that the Chamber in its
entirety is supported wholly or principally by public funds, nor
does it appear that the city council created the Chamber solely to
perform its delegated functions or to advise the public body.
However, the fact that the Chamber is not a public body does not
end the discussion of whether certain records that it maintains may
be available to the public.
The Virginia Freedom of Information Advisory Council ("the
Council") has previously addressed a similar question in finding
that records collected by a private third party for a public body
were subject to FOIA.4 In reaching
this conclusion, the Council relied on the fact that the definition
of a public record indicates that physical possession of a document
by a public body is not the only criterion for determining whether
it is accessible by the public. The definition indicates that a
record in the possession of an agent of the public body, relating
to the transaction of public business, would be subject to FOIA. In
the instant case, it appears that the Chamber is performing a task
delegated to it by the city council. Ordinarily, a local governing
body would be involved in running local tourism activities. Here,
however, the city council has delegated this task to the Chamber,
and has provided funding to carry out this task. Thus, in so far as
the Chamber has records relating to the tourism programs of the
City, it is acting as an agent for the city council and the records
are available to the public under FOIA.
In the facts that you present, you indicate that you requested
these records from the city council. However, the facts indicate
that the records were actually in the possession of the Chamber.
FOIA states at subsection A of § 2.1-342 that all public
records shall be open to inspection and copying by any citizens of
the Commonwealth during the regular office hours of the
custodian of such records.5
(Emphasis added). In the instant case, the Chamber would be the
custodian of the records since they possess them in their capacity
as an agent for the city council in implementing the tourism
program. The instant case is distinguishable from the Council's
advisory opinion mentioned above.6 In
that advisory opinion, the public body had a statutory duty to
collect certain information, and it contracted with a private third
party to collect that data. There, the public body remained the
custodian of those records, even though it did not have physical
custody, because of the statutory duty to maintain the information
in those records. Here, there is no statutory duty for the city
council to maintain a tourism program, but it has chosen to fund
such a program and delegate its administration to the Chamber.
There is no statutory duty for the city council to maintain records
relating to tourism. In this instance, the Chamber is acting as an
agent for the city council. Therefore, while not all records of the
Chamber are public records subject to FOIA, those relating to the
tourism program that is funded by the city council are subject to
FOIA and available to the public. The Chamber, and not the city
council, is the appropriate entity to ask for these records.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. Va. Code Ann. § 2.2-3704(A) (Michie 2001)
(effective Oct. 1, 2001).
2. Va. Code Ann. § 2.2-3701 (Michie 2001)
(effective Oct. 1, 2001).
3. Va. Code Ann. § 2.2-3701 (Michie 2001)
(effective Oct. 1, 2001)
4. Virginia Freedom of
Information Advisory Opinion 37 (2001).
5. Va. Code Ann. § 2.2-3704(A) (Michie 2001)
(effective October 1, 2001).
6. Virginia Freedom of
Information Advisory Opinion 37 (2001).
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