WHRO, the public television and radio station in Norfolk, is not a public body subject to FOIA because it is not supported wholly or principally by public funds, Norfolk Circuit Chief Judge Joseph Leafe held on Sept. 1.

The ruling put an end to an attempt by David Wigand of Pulaski to compel the station to disclose the salary information of its employees.

WHRO is operated by the Hampton Roads Education Television Associations Inc. It was initially formed by school boards and school districts across the state. Leafe found that while WHRO may once have been supported wholly or principally by public funds provided by the participating school divisions, it was not now.

The evidence showed that 24 percent of WHRO’s funding in 2003 came from government support, and 26 percent in 2002.

Leafe implied that an entity would be considered public body if more than half of its budget came from the government. “Defendant’s undisputed evidence shows that for the years 2002 and 2003, less than 50% of WHRO funding came from government support. ”

The Freedom of Information Advisory Council has stated that while there is no bright line as to how much government support is necessary before an entity is a public body, it has used two-thirds as its general guide.

Leafe’s opinion referred to the FOIAC opinion and noted that regardless of whether the two-thirds guide was used, the question of whether an entity is supported wholly and principally by public funds is a question of fact. “An entity receiving less than 66.6% of its funding from government sources may still be deemed a public body, especially if the entity performs a delegated governmental function. ”

Leafe also rejected Wigand’s argument that WHRO remained a public body due to the public status of its incorporators. This argument disregards WHRO’s status as a corporate entity, Leafe said. WHRO is a non-profit, non-stock corporation organized under Virginia law.

In October, the FOI council refused to give Wigand an opinion on the exact same issue of public support, deferring to Leafe’s ruling. The council did say, however, that if the school boards possessed records relating to WHRO and the transaction of public business, those records would have to be disclosed under FOIA.