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
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
Maria J.K. Everett
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.
Freedom of Information Advisory Opinion 03 (2004).
4See Va. CODE ANN. § 2.2-3701.