FOI Advisory Council Opinion AO-04-13



May 17, 2013

Lynn Julia Pendlebury Colby
Alexandria, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based upon the information presented in our telephone conversation March 1, 2013, your electronic mail messages dated February 28, 2013, and March 31, 2013, and your letter received April 10, 2013.

Dear Ms. Colby:

You have asked whether the Alexandria Old Town Farmers Market Rules Committee (the Rules Committee) is a public body subject to the meetings requirements of the Virginia Freedom of Information Act (FOIA). As background, you indicated that the Rules Committee was created under the Old Town Farmer's Market Rules and Regulations adopted by the City Council in 1989. Specifically, you included minutes of the May 9, 1989 regular meeting of the City Council that state that the City Council unanimously approved the regulations (Attachment 1) of the City Manager's report and authorized the City Manager to implement them on May 20, 1989. You also included the May 4, 1989 memorandum from the City Manager to the Mayor and City Council that was referenced in those minutes (the 1989 memorandum). The 1989 memorandum indicates that the Farmers' Market is a tradition that had been going on for 240 years at that date. It appears that the position of Market Master already existed at that time, but due to growth in the market over the prior five years, the City Manager felt it would be helpful to adopt new rules and regulations and to establish a Rules Committee. The 1989 memorandum states that the City Manager

convened a committee to work on the matter during the winter with a view toward having a revised regulation ready for implementation in the Summer of 1989. The proposed regulation is the result of that effort and reflects the combined work of the City Attorney's Office, General Services, Finance, and Health Departments, as well as members of my staff.

The proposed Farmers Market Regulations attached to the 1989 memorandum define the Rules Committee as follows:

The Rules Committee of the Farmers Market will consist of two vendor representatives who will be selected biennially in July by a vote of the vendors, the Marker Master, the Director of the General Services Department, a representative of the Finance Director, and a representative of the Health Department. The Committee will meet to review rule changes, vendor appeals, product eligibility issues, disciplinary actions/suspensions, and issues that the City Manager wishes to resolve.

Therefore it appears that the Rules Committee is a formal version of the informal committee that the City Manager originally assembled. You also provided a copy of a memorandum regarding "Amendments to Farmers' Market Regulations" from the City Manager to the Mayor and City Council dated February 3, 1992 (the 1992 memorandum), which described the Rules Committee using identical language. The same memorandum indicated that the Market Master is a staff person designated by the General Services Department who assigns stalls, collects rents, assists vendors and visitors, and enforces the City's regulations. In the same paragraph, the memorandum states that the Rules Committee has worked to resolve conflicts between vendors, to rule on eligibility of products by applicant vendors, and to initiate ideas for improvements to the Market. Therefore it appears that the Rules Committee was in operation for some time from 1989 until the early 1990's, at least.

However, it appears that sometime after this 1992 memorandum, the City may have stopped using the Rules Committee, as you indicated that to the best of your knowledge, the Rules Committee did not exist until earlier this year. You also indicated that the Market Master quit sometime in 2010 or 2011, but the Farmers' Market continued to operate with neither a Market Master nor a Rules Committee. You stated that a new Market Master was appointed in October, 2012 and in December, 2012, she announced that the Rules Committee would be convened after the vendors elected two representatives in January, 2013. You further stated that the Rules Committee met for the first time on February 7, 2013, and again on February 21, 2013, but that no notice was given and public participation was not allowed. Additionally, you stated that the Market Master announced that vendors would be allowed to attend and observe the third Rules Committee meeting on March 7, 2013. You added that while vendors have been allowed to observe Rules Committee meetings since that date, the general public has not, and vendors are not allowed to voice their concerns at the meetings. Given this background, you asked whether the Rules Committee is a public body subject to FOIA that is required to hold public meetings.

The purpose of FOIA expressed in subsection B of § 2.2-3700 is to ensure the people of the Commonwealth ... 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, in relevant part, any legislative body, 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, as well as 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. The City Council itself is a public body under the first part of this definition, as it is a municipal council of a political subdivision of the Commonwealth. Therefore the question to be addressed is whether the Rules Committee is a committee, subcommittee, or other entity however designated, of the [City Council] created to perform delegated functions of the [City Council] or to advise the [City Council].

On the face of it, given the background described above, it does not appear that the Rules Committee advises the City Council directly. Instead, it appears that the Rules Committee advises and answers to the City Manager. Observe that the 1989 memorandum stated that by approving the Farmers' Market Regulations, the City Council will be exercising its authority under Section 2.04 of the City Charter to make regulations "to establish markets in the City and regulate the same..." Notably, one of the suggested proposals in the 1992 memorandum is

that the City Manager be authorized to approve minor future amendments of rules and regulations affecting the Farmers' Market. This authorization would allow the City Manager to quickly respond to some of the unanticipated situations that can develop with little notice....If an issue arose, the Rules Committee would meet to prepare a proposal, a proposed rule change would then be posted for vendors to review, and the City Manager would render a final decision. Examples of rules that could be necessary would be regulations regarding type of stalls, regulations necessitated for safety, changes needed in labeling, etc.

Thus, it appears that the City Council exercised its authority to create the rules and regulations governing the operation of the Farmers' Market, and to establish the Rules Committee to help advise the City Manager. It is not clear whether all the suggestions in the 1992 memorandum were adopted, but the facts presented appear to indicate that if there was any delegation of the City Council's authority to regulate the Farmers' Market, that delegation was to the City Manager, not to the Rules Committee. Furthermore, it does not appear that the Rules Committee itself advises the City Council. Therefore it appears that the Rules Committee does not meet the definition of public body because it is not a committee ... of the [City Council] created to perform delegated functions of the [City Council] or to advise the [City Council].

However, while the Rules Committee does not appear to be a public body for meetings purposes under FOIA, I would note that the definition of public records in § 2.2-3701 includes all writings and recordings ... regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Following this definition, records of the Rules Committee concerning the transaction of public business - i.e., records regarding the Farmers' Market or any other public business before the Rules Committee - would be subject to FOIA. You stated that you have asked the City for documents related to the Rules Committee meetings, but that the responses have always been late. You did not provide any other details about your records requests, so I cannot offer any more specific opinion based on this limited description. However, I would note that subsection E of § 2.2-3713 provides that [a]ny failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter, and subsection D of the same section states that a single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein. I would suggest for the future that you direct your requests to the office of the City Manager, and I would remind the City that it is required to comply with the procedural requirements of FOIA in its responses.

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


Maria J.K. Everett
Executive Director