July 10, 2003

Mr. William Murphy
Murphy's College Books
Fairfax, 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 correspondence of May 12, 2003 and May 19, 2003.

Dear Mr. Murphy:

You have asked whether Barnes & Noble Booksellers is subject to the Virginia Freedom of Information Act (FOIA), to the extent that it has contracted with George Mason University ("the University"), a public institution of higher education, to mange the University's on-campus bookstore.

You indicate that in June of 1999, Barnes & Noble entered into a contract to manage the University bookstore. The bookstore continues to be called the "George Mason University Bookstore," and is located on the campus of the University. You state that according to the terms of the contract, a minimum of $1 million annually will be returned to the University from sales in the bookstore. You indicate that the contract also states that Barnes & Noble works for the University. You state that the University notified its instructors to send their textbook selections for each semester directly to the University bookstore.

You advise that you operate an off-campus bookstore, not affiliated with the University, that serves the University community. In order for you to know which textbooks to stock and have available for sale each semester, you access records of the instructors' textbook selections. The University instructed you to direct all requests for copies of the textbook selections to University Services. You indicate that on two different occasions you requested the selections from University Services, but did not receive all of the requested records. Specifically, four instructors whose selections you did not receive indicated to you that they had submitted their textbook selections directly to the University bookstore, as instructed. Upon notifying the University that you had not received all of the records you requested, your contact in University Services notified the manager of the University bookstore, and a nine-inch stack of records not previously received was produced. You indicate that the University's position regarding this situation is that it did not violate FOIA because the University bookstore, under the management of Barnes & Noble, did not give all of the records to the University. Furthermore, the University asserts that Barnes & Noble is an independent contractor not under the control of the University and thus not subject to FOIA. You ask if Barnes & Noble is acting as an agent for the University, and is therefore subject to FOIA.

Section 2.2-3701 of the Code of Virginia defines a public body as any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth…and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. Barnes & Noble, a large, private corporation, does not fall under this definition of a public body because it is not supported wholly or principally by public funds. However, the definition of a public record includes 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. (Emphasis added.) In the instant case, the University is not mandated by law to operate a bookstore for its students. Nonetheless, the University has decided that this is an auxiliary service that it would like to offer, but has delegated the operation and management of the bookstore to Barnes & Noble. FOIA does not define the term "agent," so in order to determine if an entity is acting as an agent of a public body, the Virginia Freedom of Information Advisory Council has previously opined that one must examine the elements of the common law "principal-agent" relationship.¹

The Supreme Court of Virginia has defined agency as "a fiduciary relationship resulting from one person's manifestation of consent to another person that the other shall act on his behalf and subject to his control, and the other person's manifestation of consent so to act."² The Court has further reasoned that control is an important factor in determining whether an agency relationship exists -- it is necessary that an agent not only be subject to the principal's control, with regard to not only the results but also to the methods and details of doing the work. In addition, the work must be done by the agent for the principal's benefit. The law does not presume that an agency relationship exists; instead, the presumption is that a person is acting for himself, and not as an agent. Whether an agency relationship exists is largely a question of fact.³ If the terms of the contract and the nature of the relationship between the University and Barnes & Noble indicates that the University maintains control of decisions relating to the operation of the University bookstore, then Barnes & Noble would be acting as an agent for the University.

However, it is important to note that if Barnes & Noble is acting as an agent of the University, it is not a public body itself, and is therefore not required to respond to FOIA requests. Subsection A of § 2.2-3704 states that all public records shall be open to inspection and copying…during the regular office hours of the custodian of such records. The Freedom of Information Advisory Council has previously opined that a public body can be the custodian in a broader sense than just having physical possession of a record.⁴ To the extent that a private entity creates or maintains records as an agent for a public body, the public body will remain the legal custodian of those records. The appropriate entity to ask for records is the principal public body -- in this case the University -- and not the agent, because any records generated by Barnes & Noble relating to the University bookstore are created in furtherance of its contractually obligated duties from the University.⁵ Furthermore, in a "principal-agent" relationship, the principal is generally liable for the actions of the agent. The burden would be on the University to ensure that compliance with FOIA continues when it chooses to delegate responsibility for management of the University bookstore.

The analysis does not end even if it appears that Barnes & Noble is acting more like an independent contractor than an agent and the University maintains little or no control over the methods and details of running the University bookstore. The records at issue here -- the textbooks selected by instructors for their courses -- relate to the core public function of the University in providing an educational curriculum to students in the Commonwealth, and not just to running a bookstore. Any action of a public body to work with agents or independent contractors should avoid frustrating the purpose of FOIA. Barnes & Noble is likely not the only entity that maintains a list of the University's textbook selections. It would seem that the University administration, each academic department, or at the very least each instructor, would have records in his possession indicating the textbooks selected for a given semester. When you make a request for textbook selections, you might consider asking not only for the official textbook selection forms, but also any records maintained by the University indicating each instructor's textbook selection for the semester. To ease the burden of responding to such requests, the University might find it necessary to include a clause in its contract with Barnes & Noble requiring a copy of all textbook selections to be made available to the University, or set up a system whereby instructors submit their selections both to Barnes & Noble and a central point in the University administration, such as University Services.

In conclusion, all records held by Barnes & Noble relating to the management of the University bookstore are subject to FOIA if Barnes & Noble is acting as an agent of the University. The question of agency is a question of fact, and must be determined by looking at the terms of the contract between the University and Barnes & Noble.⁶ However, if Barnes & Noble is an agent, the University remains the legal, if not the physical, custodian of the records, and the University is the appropriate entity from whom to request the records. If Barnes & Noble is acting as an independent contractor and not an agent, records of textbook selections by instructors clearly relate to the public business of the University. The public policy of FOIA at § 2.2-3700 states that the General Assembly enacted FOIA to ensure the people of the Commonwealth ready access to public records. The University may not frustrate this policy of ready access to records relating to the transaction of public business by contracting with an independent contractor to operate the University bookstore and claiming that such records are out of its reach.

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

Sincerely,

Maria J.K. Everett
Executive Director

1 See Virginia Freedom of Information Advisory Opinion 14 (2003).

2 State Farm Mut. Auto. Ins. Co. v. Weisman, 247 Va. 199, 203, 441 S.E. 2d 16, 19 (Va. 1994).

3 See Drake v. Livesay, 231 Va. 117, 341 S.E. 2d 186 (Va. 1986), Reistroffer v. Person, 247 Va. 45, 439 S.E. 2d 376 (Va. 1994), State Farm Mut. Auto. Ins. Co. v. Weisman, 247 Va. 199, 441 S.E. 2d 16 (Va. 1994), The Texas Co. v. Zeigler, 177 Va. 557, 14 S.E. 2d 704 (Va. 1941), Wells v. Whittaker, 207 Va. 616, 151 S.E. 2d 422 (Va. 1966), Whitfield v. Whittaker Memorial Hospital, 237 Va. 489, 169 S.E. 2d 450 (Va. 1969).

4 See Virginia Freedom of Information Advisory Opinion 37 (2001).

5 To the extent that this opinion is inconsistent with Virginia Freedom of Information Advisory Opinion 41 (2001), that opinion is overruled.

6 The Virginia Freedom of Information Advisory Council did not have a copy of the contract between the University and Barnes & Noble to review, so a definitive factual determination as to whether or not Barnes & Noble is acting as an agent or an independent contractor cannot be made.