December 12, 2000

Mr. Douglas A. Guynn, Esq.
Wharton, Aldhizer & Weaver, PLC
Harrisonburg, VA

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 e-mail of October 28, 2000.

Dear Mr. Guynn:

You have asked a series of questions concerning the participation of school board members in activities sponsored by the Virginia School Boards Association (VSBA), and VSBA's status as a public body under the Virginia Freedom of Information Act (FOIA). You indicate that VSBA is supported largely, if not entirely, by payments from Virginia school boards, and routinely holds conventions and education and training events, as well as lobbying the Virginia General Assembly on behalf of itself and local school boards.

1. Your first question concerns the definition of a public body, and whether VSBA qualifies as a public body under FOIA. FOIA 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). You have indicated that VSBA obtains most of its funding from local school boards across the Commonwealth in the form of membership dues. It is a trade association much like other professional associations including the Virginia Municipal League, the Sheriff's Association, and the Local Government Attorneys Association of Virginia. It is the opinion of this office that an organization such as VSBA does not fall under FOIA's definition of a public body.

An opinion of the Attorney General distinguished between various professional organizations and their statuses as public bodies under FOIA.[fn1] The opinion found that an organization of presidents of state-supported colleges fell outside the scope of the definition of a public body. While the opinion did not indicate how much, if any, of the organization's funds were derived from public sources, the reasoning hinged on the fact that the organization was created by the presidents, and not the state, to discuss problems and issues common to state college presidents. Similarly, VSBA is comprised of school board members who voluntarily join the organization and convene to discuss and learn about current issues common to school administrators. VSBA does not act as an advisory or policy-setting body to individual school boards.

Furthermore, a court has construed the definition of "organization" in FOIA so as to parallel the types and functions of public bodies enumerated in the definition.[fn2] A circuit court found that the bodies described in the definition are those types of bodies that are "constitutionally or legislatively charged with the governance of, and ultimate responsibility for, a discrete agency of government."[fn3] VSBA's mission and activities would not fall under this interpretation of an organization.

2. Your second question asks whether VSBA meetings constitute public meetings. In light of my response to your first question, the VSBA meeting itself would not be considered a public meeting, because VSBA is not a public body.

3. Your third question asks if a gathering of three or more members, or a quorum if less than three, of one school board at a VSBA convention or training session qualifies as a meeting under FOIA. FOIA defines a meeting as a gathering of three or more members, or a quorum if less than three, of a public body. However, subsection G of §2.1-343 allows members of a public body to gather at any place or function where no part of the purpose of the gathering is to discuss or transact public business. Thus, multiple members of a given school board may gather at the same VSBA event without invoking the requirements of FOIA, so long as they do not discuss or transact business. If members of a particular school board discuss public business, then the gathering would be considered a meeting for which notice must be given and the public able to attend.

4. Your fourth question asks if materials obtained by a school board member at a VSBA event would be subject to a FOIA request. A public record, by definition, is one prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. (Emphasis added). Materials obtained by an individual member for his or her own education would not fall under this definition, and thus would not be subject to a FOIA request. However, if a board member incorporated these materials into the conduct of public business, such as later using them to formulate or discuss policy of the individual school board, the documents would become public records.

5. Your fifth question asks whether materials provided by a school board member to VSBA must be available to the public upon request. The answer to this question depends on the status of the information prior to being forwarded to VSBA. If data or materials were used in the transaction of public business, and were thus public records prior to being provided to VSBA, then those materials would retain their status as a public record. If a member forwards information not created in the course of the transaction of public business, those records would not become public by reason of being provided by a school member and forwarded to VSBA.

6. Your final question inquires as to the proper response by a school board to a media request to attend a VSBA convention or event. Because VSBA is not a public body, the VSBA gathering would not be considered a public event unless the members of a particular board decided to discuss or transact public business while in attendance. Thus, the event would not fall under the reach of FOIA provisions. This is not to say that an inquiring member of the media or public should be led to believe that the event is an executive or closed session, but instead merely not within the scope of FOIA. Since it is a private function, an inquiring individual might be directed to discuss the possibility of attendance with an officer of VSBA.

One final note, subsection G of § 2.1-343, commonly known as the "bump into provision," does not prohibit the gathering of members of a public body so long as no part of the purpose of the gathering or function is to discuss or transact public business and was not prearranged for that purpose. Members of a public body in attendance must limit their conversations to issues not related to the public business in order to be in compliance with FOIA. I suggest that someone serve as a "gatekeeper" at these gatherings to keep discussions within the allowable limits of the law.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1974-1975 Op. Atty. Gen. Va. 584.

2. Students for Animals v. The Rector and Board of Visitors of the University of Virginia, Richmond Cir. Ct., Case No. N-6464-3 (1988).

3. Id.