FOI Advisory Council Opinion AO-01-15
AO-01-15
March 17, 2015
Aaron W. Graves, Esq.
President, Rockingham County/City of Harrisonburg SPCA
Harrisonburg, Virginia
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 electronic mail of October 29, 2014 and February 4 , 2015.
Dear Mr. Graves:
You have asked whether the Rockingham County/City of Harrisonburg Society for the Prevention of Cruelty to Animals (RHSPCA) is a public body subject to the provisions of the Virginia Freedom of Information Act (FOIA). As background, you stated that the RHSPCA is a private nonprofit that receives 56% of its funding from government sources, pursuant to contracts to run an animal shelter on behalf of Rockingham County and the City of Harrisonburg. You added that RHSPCA does not act as an arm of any local governing bodies and that RHSPCA "employees don't wear uniforms, don't have police style vehicles and do not have arrest powers nor issue a summons." You stated that animal control functions for the localities are handled by the City of Harrisonburg Police Department and the Rockingham County Sheriff's Office. It is my understanding that RHSPCA performs no other services or functions on behalf of the City or the County except running the animal shelter, nor does RHSPCA get any other support or use any other City or County resources or equipment.
The policy of FOIA enacted in subsection B of § 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. That policy goes on to state that [t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. The definition of public body in § 2.2-3701 includes, among other types of entities, other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. This office has previously opined that as a general rule, one could construe that an entity that received at least two-thirds, or 66.6 percent, of its operating budget from government sources would be supported wholly or principally by public funds.1 However, the opinion cautioned that the two-thirds rule is merely a guideline, and 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. That opinion also postulated that if 55 percent of the budget came from public funds and 45 percent from another single source, then the public funds would not be the principal source. However, if the 45 percent came from a number of sources, each representing a relatively small fraction of the overall budget, then the 55 percent from public funds would be the principal source.2
This office has applied those principles in considering whether a different SPCA was subject to FOIA in two prior opinions, each of which reached a different conclusion based on different facts presented.3 The first opinion concluded that the SPCA was subject to FOIA for both records and meetings purposes.4 The facts presented in that opinion were that in addition to receiving 63% of its support from public funds, the SPCA in question was acting as an agent of four localities in running an animal shelter, and SPCA employees were also the animal control officers for the localities. The first opinion concluded that the SPCA was acting as an agent of the localities for records purposes because the definition of public record in § 2.2-3701 includes all writings and recordings... however stored, and 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. [Emphasis added.] As stated in the first opinion, the law contemplates that public records for purposes of FOIA includes more than just records in the physical custody of a public body, it also includes records held by an agent of a public body. This office has previously reasoned the physical possession of a record by a public body is not the only criterion as to a whether a record is subject to FOIA.5 Animal care laws outside FOIA require counties and cities to have animal control officers, and the SPCA was carrying out these functions as an agent of the localities involved.6 The SPCA also fell under the definition of a public body for meetings purposes to the extent it was discussing animal control as an arm of the localities, even though the 63 percent funding it received from government sources was shy of the general two-thirds rule for determining principal funding.7
In the second opinion the conclusion was that the SPCA was not a public body subject to FOIA.8 The facts presented were that the amount of funding from public sources was approximately 59.5%, but varied from month to month depending on how many animals were in the shelter, pursuant to the contract the SPCA had with the localities to provide animal shelter services. It was determined that the receipt by a private entity of public money derived from arm's length transactions, without any other source of public funds, should not be included in determining the private entity's status as a public body under FOIA. Additionally, the SPCA no longer employed animal control officers or otherwise acted as an arm of the local governing bodies. Based on those facts, the second opinion concluded that the SPCA was not a public body subject to FOIA.9
Applying the same analysis to the facts you have presented, the RHSPCA is most akin to the second 2004 opinion. You have stated that RHSPCA receives 56% of its support from public funds, which is clearly less than the two-thirds rule of thumb to be considered the principal source of support. You confirmed that those funds are payments RHSPCA receives pursuant to the contracts with the City and County to provide animal shelter services. As stated in the second 2004 opinion, a private entity does not become a public body solely because the private entity provides goods or services to a public body through a procurement transaction. Additionally, you also confirmed that RHSPCA does not carry out any animal control functions on behalf of the localities. Therefore, following the reasoning of the second 2004 opinion, RHSPCA is not a public body subject to FOIA. However, please keep in mind that as described in the first 2004 opinion, if RHSPCA acts as an agent of the localities, RHSPCA may hold public records, and in any case, there are separate records keeping requirements under animal control laws outside of FOIA that would still apply.10
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. Freedom of Information Advisory Opinion 36 (2001).
2. Id.
3. Freedom of Information Advisory Opinions 03 (2004) and 28 (2004).
4. Freedom of Information Advisory Opinion 03 (2004).
5. Freedom of Information Advisory Opinion 41 (2001).
6. The 2004 opinions referred to former Title 3.1; equivalent provisions regarding animal control officers and animal shelter records requirements are now found in the Comprehensive Animal Care Laws (§§ 3.2-6500 et seq.).
7. Freedom of Information Advisory Opinion 03 (2004).
8. Freedom of Information Advisory Opinion 28 (2004).
9. Id.
10. Supra, n. 6.
