ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Act provides citizen access to public records and to meetings of public bodies. General Assembly did not intend to expose to public scrutiny records of private corporations and businesses that contract with public bodies. Assembly did not intend for Act to apply to private corporation that receives public funds to pay for property, goods or services it provides, when corporation is not supported wholly or principally by public funds. Private corporation that has entered into management contract with Hotel Roanoke Conference Center Commission is not "public body" subject to Act.

The Honorable Clifton A. Woodrum
Member, House of Delegates

You ask whether a private corporation that has entered into a management contract with the Hotel Roanoke Conference Center Commission (the "Conference Center" and the "Commission") is a "public body" subject to The Virginia Freedom of Information Act, sections 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act").

You relate that the Commission entered into an Interim Conference Center Management Agreement ("Interim Agreement") with a private corporation that manages hotels, conference centers and civic centers throughout the nation. The corporation is not supported wholly or principally by public funds. Under the Interim Agreement, the private corporation books reservations for groups of guests, with no involvement by the Commission. Section 9 of the Interim Agreement states that "[the private corporation] is being engaged hereunder as an independent contractor, and not as an employee, joint venturer or partner of the Commission." Id. at 6. Section 4 of the Interim Agreement provides that,

[i]n addition to the Initial Services expenses, the Commission shall pay to [the private corporation] an initial services fee in the sum of $37,500.00, for Initial Services to be performed by [the private corporation] hereunder. Such fee shall be paid to [the private corporation] in monthly installments of $1,400.00 commencing on September 1, 1993, and on the first day of each month thereafter through and including June 1, 1994, and monthly installments of $2,937.50 commencing on July 1, 1994, and on the first day of each month thereafter through and including February 1, 1995.

Id. at 4.

The Commission is in the process of drafting a five-year term Management Agreement as a successor to the Interim Agreement. Under the Management Agreement, the private corporation will possess and exercise sole ownership and control over the records and documents pertaining to the booking of guests or other uses of the Conference Center.

Your question arises because of a written request, pursuant to the Act, from a privately owned hotel in Roanoke to the Commission's acting director asking for a current listing of all groups booked into the Conference Center whose reservations are confirmed or tentative, and a weekly update on new bookings, to include a contact name, phone number and type of function.¹

The question of whether circumstances may exist in which a private corporation may become a "public body" subject to the Act has not been addressed by Virginia courts.² The Circuit Court of the City of Richmond noted, however, that the "mere realignment of responsibilities is insufficient to bring an otherwise private entity within the coverage of the [Act]." Little v. Virginia Retirement System, 28 Va. Cir. 411, 422 (Richmond Cir. Ct. 1992).

The General Assembly has stated that the primary purpose of the Act is to ensure the people of this Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies wherein the business of the people is being conducted.¨ The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.¨

This [Act] shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.

Section 2.1-340.1.

The primary goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Analysis of legislative intent includes appraisal of the subject matter and purpose of the statute, in addition to its express terms. Vollin v. Arlington Co. Electoral Bd., 216 Va. 674, 679, 222 S.E.2d 793, 797 (1976). The purpose underlying a statute's enactment is particularly significant in construing it. VEPCO v. Prince William Co., 226 Va. 382, 388, 309 S.E.2d 308, 311 (1983). Moreover, statutes should not be interpreted in ways that produce absurd or irrational consequences. McFadden v. McNorton, 193 Va. 455 , 461, 69 S.E.2d 445, 449 (1952); see Op. Va. Att'y Gen.: 1993 at 192, 196; 1991 at 5, 7; 1986-1987 at 307, 308. Instead, they should be harmonized with other existing statutes where possible to produce a consistently logical result that gives effect to the legislative intent. 2A Norman J. Singer, Sutherland Statutory Construction section 46.05 (5th ed. 1992 & Supp. 1994); 1993 Op. Va. Att'y Gen., supra.

In promulgating the Act, the General Assembly intended to give citizens access both to official records in the possession of public bodies and to meetings of public bodies. In my view, the General Assembly did not intend to expose the records of private corporations and businesses that have contracted with public bodies to the scrutiny of the public. Under both the Interim Agreement and the Management Agreement, all bookings of guests to the Conference Center will be made by the private corporation, and all records associated with bookings will be maintained at the offices of the corporation. The Commission is not involved in the booking process and keeps no records relating to bookings.

It is my opinion that the General Assembly did not intend for the Act to apply to a private corporation receiving public funds to pay for property, goods or services it provides, when that corporation is not supported wholly or principally by public funds. To determine otherwise would open the records of many private corporations and businesses that have contracted with state or local government agencies to public scrutiny, and would likely have a chilling effect on the willingness of private corporations and businesses to enter into contracts with public bodies. It is, therefore, my opinion that the private corporation that has entered into the subject management contract is not a "public body" subject to the Act.

Footnotes:

1. A prior opinion of the Attorney General concludes that the Act does not authorize a person to make a continuing request for official records that are not in existence at the time the request is made. 1991 Op. Va. Att'y Gen. 7, 9.

2. A Virginia circuit court held that because the "peculiar relationship between the [Virginia Retirement System] Board of Trustees and the Board of Directors makes the later [sic] subject to the [Act], the Court need not decide the more difficult questions of whether circumstances exist in which a private corporation may become merely an arm of the state and whether such a relationship alone would make the private corpora tion subject to the Act." Little v. Virginia Retirement System, 28 Va. Cir. 411, 414 (Richmond Cir. Ct. 1992).