Since the August 2006 newsletter, the Freedom of Information Advisory Council has issued four opinions. The opinions were dominated by questions involving the public-body status of various quasi-governmental entities, an issue bound to come up even more in the future.
AO-07-06 addressed a question from the assistant secretary of transportation on the public-body status of an “independent review panel” set up to study options for the Dulles Corridor Metrorail Project. The council acknowledged that the panel is not a traditional public body itself (like a school board, town council, etc.); nor is it a subcommittee of another public entity, since the American Society of Civil Engineers, a private professional organization, created it. Since the panel receives funding and staff assistance from the transportation department, the council said the issue turned on whether the panel is “supported wholly or principally by public funds.” The council noted that the transportation department’s funding is in the form of a grant to the ASCE, and previous FOI Advisory Council opinions have found that grants and arm’s-length contractual arrangements should not count towards total public funding amounts. Consequently, the study panel in this case is not a public body, and so does not have to comply with the Freedom of Information Act’s meeting requirements. The council reminded the department, however, that any documents ASCE provided to the department would be public records subject to FOIA.
A Stafford County citizen asked the council to weigh in on the public-body status of a public school redistricting committee. In AO-09-06, the council found the facts surrounding the establishment and functioning of the committee to be ambiguous, but also found that the most telling factor is that the committee acts only through the school superintendent, not through the school board itself. Since the committee does not exercise any function delegated by the school board, then it is not a public body and not subject to FOIA. The council recommended that the committee follow FOIA’s guidelines for meetings anyway since local public policy requires redistricting committee meetings to be held in public.
Nor is the Virginia Blue Ridge Railway Trail Foundation Inc. a public body, the council stated on Oct. 25. The non-profit foundation, set up to promote outdoor activities in Nelson and Amherst counties, is not a public body subject to FOIA because it is not supported wholly or principally by public funds, the council said in AO-10-06.
In an opinion to the Virginia Animal Control Association, the council considered the public availability of animal licensing records in light of 2006 legislation by Del. Robert Orrock, R-Thornburg. The council stated in AO-08-06 that animal licensing tax records are public records, regardless of whether the records contain only the information required to be collected under Virginia Code §3.1-796.86 or whether they contain additional information the law does not require to be collected. On the other hand, there is an exemption in FOIA for certain tax records, including personal property tax records. Pets could be considered personal property, and access to information about the taxes on that personal property would be governed by Virginia Code §58.1-3. However, even this section allows disclosure of information “as otherwise provided by law,” which would include disclosure under FOIA. Nor does the Government Data Collection and Dissemination Practices Act prohibit disclosure of the additional information collected by some localities.
The council took the opportunity in the same opinion to generally discuss government collection of information, reminding government to “critically evaluate why any information is collected in the first instance . . . and whether this information is required by law to be collected or otherwise essential to the purpose of the public body.” The council also advised government, when collecting information, to notify citizens whether they have the option not to provide certain information and whether the collected information will be subject to disclosure under FOIA.