October 29 , 2004

Michael A. Turner
Virginia Beach, Virginia 23462

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 September 27, 2004 and on information obtained from WHRO on October 29, 2004.

Dear Mr. Turner:

You have asked whether the Hampton Roads Educational Telecommunications Association, Inc. (HRETA) is a public body as defined in the Virginia Freedom of Information Act (FOIA). You also ask whether an entity, which is subject to FOIA by virtue of it being wholly or principally supported by public funds, can be later excluded from the definition of a "public body" because it no longer supported wholly or principally by public funds.

In researching your first question, this office was made aware of a case heard in August 2004 in the Circuit Court of the City of Norfolk¹ wherein Judge Leafe rendered an opinion on the issue of whether HRETA, otherwise known as WHRO, is a public body under FOIA. In his letter opinion, Judge Leafe held "[i]n light of the facts presented, the Court finds that WHRO is not a public body under FOIA because it receives 25 percent of its funding from the government and does not perform a delegated function". Additionally, the Court found that "[t]hough elected by a nominating committee consisting of the school board members of the corporation and members of the current Board, the Board of Directors functions independently in managing the affairs of the corporation. WHRO does not perform delegated governmental functions of the incorporating school divisions".²

It is the policy of this office not to issue an opinion once litigation is commenced or a judge of competent jurisdiction has rendered an opinion on the same factual questions raised in a request for an advisory opinion of the Council. The court and not the Council, is the appropriate body to decide and settle a dispute as a matter of law. This office is aware that a final order of the Circuit Court of Norfolk has not been entered, and therefore the time period for noting an appeal has not run. Absent a reversal of the circuit court's ruling on appeal, its decision stands.

Your second question asks whether an entity, which was subject to FOIA by virtue of it being supported wholly or principally by public funds, can be later excluded from the definition of a "public body" because it no longer is supported wholly or principally by public funds. The answer to this question is that it depends on the status of the entity (e.g., whether is wholly or principally supported by public funds) at the time a request for records is made under FOIA. The office has previously opined that ultimately the question of whether an entity is supported principally by public funds is a question of fact that must be decided on a case-by-case basis.³

I note, however, that to the extent that any records exist of the various school boards relative to HRETA, such records are public records as defined in FOIA in that they are "... prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business."⁴ As public records, they would be subject to the mandatory disclosure requirements of FOIA, absent any statutory exemption.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹David D. Wigand v. Sherby Wilkes and WHRO, No. L04-974, ltr. op. (City of Norfolk Cir. Ct. September 1, 2004), (2004 WL 1939074 (Va. Cir. Ct.)).
²Id.
³See Virginia Freedom of Information Advisory Opinion 03 (2004).
⁴See Va. CODE ANN. § 2.2-3701.