December 19, 2012
The Crooked Road: Virginia's Heritage Music Trail
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 our telephone conversations of October 31, 2012, and November 26, 2012, and your electronic mail of November 15, 2012, and November 29, 2012.
Dear Mr. Hinshelwood:
You have asked whether the Crooked Road, a nonprofit entity, is subject to the provisions of the Virginia Freedom of Information Act (FOIA). The Crooked Road is described as a tax-exempt nonprofit entity created to generate tourism and economic development in the Appalachian region of Southwestern Virginia by focusing on the region’s unique musical heritage.1 As background, you indicated that the Crooked Road was once supported by a locality, but now operates in conjunction with the Southwest Virginia Cultural Heritage Foundation (the Foundation)2 and other affiliated organizations, and receives additional funding from the Friends of Southwest Virginia (another nonprofit organization) and other sources. The Crooked Road's website further states that "The Crooked Road” is funded primarily by the Appalachian Regional Commission. Additional support comes from the United States Department of Agriculture Rural Development Program, the Virginia Department of Housing and Community Development, the Virginia Tobacco Indemnification and Community Revitalization Commission, the Virginia Coalfield Economic Development Authority, the Virginia Tourism Corporation, and local communities. Further background information will be set forth as needed below.
The general policy of FOIA set forth in § 2.2-3700 is to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The term "public body" is defined in § 2.2-3701 to mean
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. It shall include ... any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.
Generally speaking, nonprofit entities may fall within this definition as other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.3 As a general rule of thumb, this office has advised that an entity which receives two-thirds or more of its support from public funds would be considered principally supported by public funds, but each situation must be considered on a case-by-case basis.4 As described above, it appears that the Crooked Road receives funding from various diverse sources, including federal, state, and local government agencies, other nonprofit corporations, and private donations. You indicated that the Crooked Road has an operating budget of approximately $275,000, approximately $87,500 of which comes from public funds. Given this background information, that only about one-quarter of the Crooked Road's support comes from public funds, it appears that the Crooked Road would not be a public body subject to FOIA based upon its funding.
However, in this instance, the inquiry is further informed by reference to the statutory powers and duties of the Foundation. Specifically, subsection B of § 2.2-2736 provides as follows:
The Foundation may establish nonprofit, nonstock corporations under Chapter 10 (§ 13.1-801 et seq.) of Title 13.1 as public instrumentalities exercising public and essential governmental functions to assist the Foundation in (i) encouraging the economic development of Southwest Virginia through the expansion of cultural and natural heritage ventures and initiatives related to tourism and other asset-based enterprises, including the Southwest Virginia Artisan Center, The Crooked Road, 'Round the Mountain, and related cultural and natural heritage organizations and venues that promote entrepreneurial and employment opportunities and (ii) conducting other activities useful in carrying out the provisions of this article.
[Emphasis added.] Thus by operation of law it appears that the Crooked Road is a public instrumentality exercising public and essential governmental functions to assist the Foundation. While the phrase public instrumentality is used in many different parts of the Code of Virginia, it is not defined by statute, and does not appear in the listed terms in the definition of public body in § 2.2-3701. Turning to common usage in the absence of a statutory definition, the term instrumentality in this context means a subsidiary branch, as of a government, by means of which functions or policies are carried out.5 Thus, the Crooked Road appears to be a public, subsidiary branch of government (in this case, of the Foundation and the General Assembly, as provided by law) carrying out a specific statutory function as quoted above. Therefore, even though the Crooked Road does not appear to be supported wholly or principally by public funds, it is still a public body subject to FOIA.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1. Quoted from the Crooked Road website "About the Trail" web page (http://thecrookedroad.org/contentpage.asp?ID=1002, last visited December 18, 2012).
2. The Foundation is itself a public body established by Va. Code § 2.2-2734; the Foundation was formerly known as the Southwest Virginia Cultural Heritage Commission.
3. See Freedom of Information Advisory Opinions 36 (2001), 48 (2001), 10 (2006), 10 (2008), and 09 (2009).
4. See Freedom of Information Advisory Opinions 36 (2001), 09 (2003), 03 (2004), 28 (2004), 09 (2005), 07 (2006), 07 (2007), and 10 (2008).
5. The American Heritage Dictionary 666-667 (2d College ed. 1982).