Commonwealth of Virginia
Second Judicial Circuit
Circuit Court for the City of Virginia Beach

By: Judge Frederick B. Lowe

Re: PETA FOIA Requests
In Chancery No.: CH01-2226

Gentlemen:

The Court has taken a number of hours to review carefully the evidence presented in this suit both by way of stipulation, numerous documents and testimony.

There is no general disagreement as to the law applicable to this case. It is clear that the Marine Science Museum Foundation as an entity is not subject to the Virginia Freedom of Information Act, whereas the Marine Science Museum itself being a city agency is subject to the Act. The question therefore is whether or not the day to day operation of the Foundation is so intermingled with and under the control of the Marine Science Museum that it in effect becomes de facto a part of the Marine Science Museum and thus subject to the Act.

The evidence in this case indeed suggests a very "cozy" relationship between the Museum and the Foundation. indeed, there are a number of areas including by not limited to the maintenance of files and storage of the computer information which would suggest difficulty in determining what information belongs to whom. Thus, the complainant’s suit is certainly not without merit.

However, the Court determines that in this case at this time the complainants have not established that information belonging to the Virginia Beach Marine Science Foundation, a private entity, is subject to the Virginia Freedom of Information Act.

Mr. Mitchell and/or Mr. Albert are requested to submit an appropriate order [see below].

As an aside the Court strongly suggests that the Foundation take the steps necessary to separate its record keeping, etc. from that of the City in order to prevent the likelihood of spending the time, effort and funds to defend its position in further litigation.

Yours very truly,
s/ Frederick B. Lowe

ORDER

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., a Virginia not-for-profit corporation,
Petitioners,

v.

CITY OF VIRGINIA BEACH, JAMES K. SPORE and C. MAC RAWLS,
Respondents.

IN CHANCERY NO.: CH01-2412

CITY OF VIRGINIA BEACH,
Petitioner,

v.

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., a Virginia not-for-profit corporation,
Respondents.

IN CHANCERY NO.: 01-2226

In Re: PETA FOIA Request

IN CHANCERY NO.: 01-2226

ORDER

THIS CAUSE came to be heard by the undersigned on December 10, 2001, on consolidated Petitions filed by the City of Virginia Beach (Chancery Number 01-2226) and by People for the Ethical Treatment of Animals (Chancery Number 01-2412 and Chancery No. 01-2226), and by the Virginia Marine Science Museum Foundation, as Intervenor in each of the cases, and the Court, after considering the evidence, the briefs and stipulations filed by the parties, the briefs of amici curiae, and the arguments of counsel, having concluded that the records and papers of the Virginia Marine Science Museum Foundation, including those stored or located on the premises of the Virginia Marine Science Museum, are not public records which are subject to production under the Virginia Freedom of Information Act; [sic]

It is therefore ORDERED, ADJUDGED AND DECREED as follows:

1. The Virginia Marine Science Museum Foundation is a private, non-stock corporation which is not subject to the provisions of the Virginia Freedom of Information Act;

2. The records and files of the Virginia Marine Science Museum Foundation, including records and files belonging to the Virginia Marine Science Museum Foundation which are located on the premises of the Virginia Marine Science Museum, are not subject to the provisions of the Virginia Freedom of Information Act; and

3. Employees of the City of Virginia Beach who are assigned to work at the Virginia Marine Science Museum are not required by the Virginia Freedom of Information Act to produce records or files in their custody or control which belong to the Virginia Marine Science Museum Foundation.

IT IS SO ORDERED,

ENTER
s/ The Honorable Frederick B. Lowe
4/12/02

ASKED FOR AND OBJECTED TO AS SET FORTH ABOVE, ON THE RECORD, AND IN ACCORDANCE WITH LEGAL MEMORANDA/MATERIALS FILED WITH THE COURT:

s/ Wiley F. Mitchell Jr.
Virginia Marine Science Museum Foundation,
Intervenor

s/ Alan D. Albert
City of Virginia Beach

s/ Kevin E. Martingayle
People for the Ethical Treatment of Animals Inc.
City of Virginia Beach

SEEN:
s/ Mark S. Smith
Counsel for Amici Curiae