April 7 , 2004

Mr. Charles Landis
Onancock, 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 letter of December 29, 2003 and your e-mails of January 9, 2004, and January 14, 2004.

Dear Mr. Landis:

You have asked three questions concerning access to records relating to the Town of Onancock's ("the Town") participation in the Main Street Program under the Virginia Freedom of Information Act (FOIA).

By way of background, the Virginia Department of Housing and Community Development ("the Department") administers the Main Street Program to assist localities in developing public and private efforts to revitalize downtown commercial areas. The Main Street Program encourages public and private partnership at the local level and offers several levels of participation. An affiliate membership is available to localities exploring downtown revitalization but that do not yet meet the requirements to be designated as an official Main Street Community. Either a local government or a partnership between local government and a private-sector organization may apply for affiliate membership.¹

You indicate that the Town Council, in preparation for application to the affiliate program, requested a grant and staff assistance from the Department to assist in developing strategies for revitalization. Upon receipt of a $3,000 planning grant from the Department and Department staff assistance, you state that the Town Council established a strategic planning committee ("the Committee") and appointed the vice-president of the Onancock Business and Civic Organization ("the Association"), a private-sector organization, as chairman of the Committee. The Committee urged residents to send written comments concerning potential revitalization strategies to the chairman. At the final meeting, the Committee recommended that the Association be designated the active participant in an application to be designated an affiliate member of the Main Street Program.

When you requested records under FOIA concerning the Town's involvement and the Association's designation as the active participant in the affiliate program, you were told that all records, including the affiliate application, were held by the Committee chairman and hence were in the possession of the Association. As such, you indicate that the Town Manager and the Association stated that those records were not public records available for public inspection because the Association is not a public body. Your first question concerns whether records in possession of the Committee chairman relating to the activities of the Committee are public records.

The policy of FOIA at subsection B of § 2.2-3700 of the Code of Virginia states that FOIA ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees. Section 2.2-3701 defines a public body as:

[A]ny legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth...It shall include...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.]

You indicate that the Town Council established the Committee to assist in developing strategies for downtown revitalization. The Committee reviewed strategy options, and presented a draft strategy to the Town Council for its approval. Clearly, the Committee falls under the definition of a public body, because it was created to perform redevelopment research on behalf of the Council, and to advise the Council as to a suggested course of action. Furthermore, the definition of a public body expressly provides that public bodies do not lose their designation as such just because they have a private sector or citizen member, such as the vice-present of the Association serving as chairman of the Committee.

Section 2.2-3701 defines a public record 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. Because the Committee is a public body, any records that it possesses or generates relating to public business -- in this case establishing strategies relating to downtown revitalization or utilizing grant funds -- would be public records, subject to inspection or copying. Any records that the chairman collects or maintains relating to the work of the Committee would be public records, despite the fact that they may be stored at her private place of business. This office has previously opined that "possession" of public records means more than just physical possession.² The definition of a public record also refers to records owned by a public body. Just because the Committee's records are not in the physical possession of the Town itself does not alter their status or change the fact that the Committee, a public body, owns them. The chairman has these records because of her appointment to the Committee. Therefore, all records relating to the work of the Committee are public records available for public inspection or copying, regardless of where such records are physically stored.

Your second question concerns whether the Association is a public body for purposes of FOIA. You state that because the Association was ultimately designated the active participant in the affiliate program, you believe that the Association was the actual beneficiary of the original $3,000 grant awarded to the Town by the Department to develop the revitalization strategies. You indicate that the Town allocated $2,000 to the Association, to be used to help the Association obtain an additional $5,000 grant from the Department. You state that it is your understanding that membership with the Association costs between $30 and $60 for individuals and businesses, and that there are approximately 10 individual members.

FOIA defines a public body to include organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. This office has previously opined that as a general rule, to be considered "principally" supported by public funds, an entity must receive 66 percent of its funds from government sources. However, ultimately the question of whether an entity is supported principally by public funds is a question of fact that must be determined on a case-by-case basis.³ In this case, the fact that the Town received a grant from the Department does not affect the Association's status as a public or private entity. It is irrelevant to the question of funding that as a result of the Town using grant money, the Association benefited by being designated an active participant in the affiliate program. It is also questionable whether the receipt of a government grant by a private entity could transform that entity into a public body for purposes of FOIA. Unlike an appropriation of funds from a public body through its budget, grants involve an application process. Generally, any eligible entity may apply, based upon a demonstration of specified requirements and criterion, to be considered in a competitive grant decision process. The selection of the recipients for a finite amount of grant money is more akin to a procurement transaction than an appropriation of funds. The process is competitive and is conducted as an arms-length transaction between the government entity providing the grants and the applicants. Therefore, money received in the form of a grant from the Department should not be included in determining whether the Association is wholly or principally supported by public funds.

You indicate that the Association received $2,000 as a direct allocation from the Town, and collects membership fees from business and individual members. I do not have a copy of the Association's 2003-2004 budget, and this office has no statutory authority to act as a finder of fact in issuing its advisory opinions. Therefore, I will proceed with the question based on your statements that the Association's sources of funds are (i) a $2,000 direct allocation from the Town, (ii) a $5,000 grant received directly from the Department and (iii) $600 collected from 10 members at $60 per member. These figures would indicate that the Association receives $2,000, or approximately 36 percent of its funding, from public funds, which does not rise to the level of being principally supported by public funds.⁴

As an aside, you indicate in your correspondence that one of the requirements for the Town to receive the initial grant to develop revitalization strategies was that the discussion of strategies include "meaningful citizen participation." You indicate that you do not think that such public participation took place, and that the Town did not comply with the grant requirements. The issue of whether there was meaningful participation is not a FOIA question, and thus is outside the statutory authority of this office to address. FOIA governs access to meetings of public bodies; it does not speak to public participation. Therefore, I cannot comment as to whether the Town's actions complied with the grant requirements as they pertain to public participation.

Finally, you indicate that all of the inquiries you have made to the Town Manager concerning these FOIA issues have been forwarded to the Town Attorney, who is also the registered agent of the Association, for review and approval before a response was made to you. You ask if this raises any FOIA issues. FOIA does not prohibit the recipient of a FOIA request from discussing or sharing the request with other people within the government. Therefore, the fact that the Town Manager shares your requests with the Town Attorney does not raise any issues relating to the application of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Information concerning the Main Street Program can be found on the Virginia Department of Housing and Community Development's webpage at http://www.dhcd.virginia.gov/Forms/VMainStreetProg/progguid.pdf (last accessed March 25, 2004).
²See Virginia Freedom of Information Advisory Opinion 37 (2001).
³See Virginia Freedom of Information Advisory Opinion 36 (2001).
⁴Because the determination of whether an entity is supported principally by public funds is a fact-based determination, if the facts differ from those you presented, the question may be resolved differently.