December 12, 2000
Mr. Douglas A. Guynn, Esq.
Wharton, Aldhizer & Weaver, PLC
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
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
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
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
Maria J.K. Everett
1. 1974-1975 Op. Atty. Gen. Va.
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).