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July 7, 2003
Mr. Daniel L. Lurker
Via e-mail
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-mails of April 17, 2003, and
May 12, 2003.
Dear Mr. Lurker:
You have asked a question about the application of the Virginia
Freedom of Information Act (FOIA) to the student government
organization of a state university, and whether a university is the
custodian of records of the student government organization.
You indicate that you made a request for records from the
student senate at George Mason University ("the University"), a
state institution of higher education, but that the speaker of the
student senate refused to supply the records. You subsequently
directed the same request to the University itself. The legal
affairs department responded that it agreed that the student senate
was subject to FOIA because student fees funded it. However, legal
affairs stated that it was not in possession of the student senate
records because the student senate was an independent organization
recognized by the University, but not a department within the
University. You ask if the University is required to respond to
your FOIA request for student senate records.
FOIA defines a public body as any legislative body,
authority, board, bureau, commission, district or agency in 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.) The Office of the Attorney General
of Virginia and The Virginia Freedom of Information Advisory
Council have both previously opined that if a student government at
a state institution of higher education is supported wholly or
principally by public funds, such as by student fees, then it is a
public body subject to the requirements of FOIA.1 As indicated in the University's response to
your request, the student senate is supported by student fees, and
is thus a public body under FOIA.
Subsection B of § 2.2-3704 of the Code of Virginia requires
that [a]ny public body that is subject to [FOIA] and that is the
custodian of the requested records shall promptly, but in all cases
within five working days of receiving a request, make one of
four responses. The public body may provide the requested records,
withhold the records if subject to an exemption, withhold the
records in part and release in part if only a portion of the
records are subject to an exemption, or respond that it is not
practically possible to respond within five working days, in which
case the public body will have seven additional working days in
which to respond. If the public body is withholding the records in
whole or in part, or responding that it is practically impossible
to respond within five working days, the response must be in
writing. Therefore, upon receipt of your initial request, FOIA
would require the student senate to respond accordingly and a
failure to do so would constitute a violation of the law.
While the student senate is a public body, by virtue of the fact
that it receives public funding, it does not necessarily follow
that it is a subset of the University, such as an academic
department, nor does it follow that the University would be
required to respond to a request for student senate records. One
could argue that because the student senate is funded by the
University, has a University faculty advisor, and is provided
office and meeting space by the University, it is a part of the
University as a whole. However, student government associations are
student-run organizations. The Attorney General did not find that
student organizations were subject to FOIA by virtue of the fact
that they were associated with or somehow a subset of a University;
instead, the Attorney General based its conclusion that a student
organization was subject to FOIA because it was supported wholly or
principally by public funds. This indicates that a student
organization is an independent public body, separate from the
University. Theoretically, if the University decided to discontinue
funding to the student senate, it could continue to exist by
establishing dues for its members or seeking other sources of
funding. The student senate's existence as an organization does not
hinge on the University. While the University and the student
senate may be closely related and have many commonalties, the
University would not technically be responsible for responding to a
request for public records from the student senate.
The fault for failure to respond to your FOIA request lies with
the student senate, and not with the University itself. Because the
student senate appears to be a separate public body, the University
is not technically the custodian of the student senate records, and
thus not required by FOIA to produce the requested records.
Certainly, because of the close relationship between the University
administration and the student senate, it would have been possible
and perhaps desirable for the University administration to forward
your request to the student senate and advise the organization of
its requirements under the law, instead of responding that the
University was not the custodian of the records. However, the
letter of the law would not require such a response.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1 See 1984-85 Op. Atty. Gen. Va. 431. See also Virginia Freedom of Information Advisory Opinion 23
(2001).
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