FOI Advisory Council Opinion AO-03-04

February 10 , 2004

Mr. Michael Mather
WTKR NewsChannel 3
Norfolk, 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 e-mail of December 10, 2003.

Dear Mr. Mather:

You have asked a question concerning the application of the Virginia Freedom of Information Act (FOIA) to a charity organization that receives public funds.

Specifically, you indicate that the Peninsula SPCA1 is a charity organization for income-tax purposes. However, according to its most recent tax return, its principal source of funding comes from contracts and grants from the Cities of Hampton and Newport News, the County of York, and the Town of Poquoson. Out of a total income of $1,481, 240, the SPCA receives $930, 666 from fees and contracts with local governments, which is 63 percent of its total income.

You indicate that the municipal contracts allow the SPCA to operate as the regional animal-control authority. The contracts with the SPCA provide for the salaries, vehicles, equipment and training for the SPCA officers who are authorized to enforce municipal codes. You state that the SPCA officers and staff collect stray animals, license animals for the municipal governments, collect fines, write summons and testify in court. In addition to the money received directly through the government contracts and grants, you also indicate that the SPCA collected nearly $40,000 in animal-impoundment charges, a sum directly attributable to acting as the animal control arm of the various localities.

You state that in the past year, the city governments contracting with the SPCA began to question the SPCA's financial practices. As a result, Hampton and Newport News conducted an audit of the SPCA and uncovered numerous fiscal problems. These problems included use of SPCA funds for personal cellular phones, purchase of options on vehicles, not specifically outfitted for SPCA services, and the subsequent sale of these vehicles at low rates to staff members, payment for two trucks for the SPCA president, use of SPCA funds for maintenance on private vehicles, and failure of the SPCA to pass on money collected as fines to the appropriate government entities. You indicate that in light of the financial questions, the SPCA has held several board meetings to which the public was denied access. Because you claim that the organization is substantially funded by public funds and acts as an arm of the four local governments, you ask if the SPCA's records and meetings should be open to the public under FOIA.

The policy of FOIA at subsection B of § 2.2-3700 of the Code of Virginia states that by enacting FOIA, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers or employees, and free entry into meetings of public bodies wherein the business of the people is being conducted. Furthermore, this subsection states that the provisions of FOIA shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.

Pursuant to § 3.1-796.104, the governing body of each county or city is required to appoint an animal control officer who has the authority to enforce Chapter 27.4 (§ 3.1-796.66 et seq.) of Title 3.1 of the Code of Virginia relating to comprehensive animal laws and local ordinances enacted pursuant to that chapter. Towns may, but are not required to, appoint an animal control officer. In the facts you have presented, the SPCA has contracted with the four localities to act as the animal-control officer for each locality.

Section 2.2-7701 defines a public record to include all writings and recordings...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). The law contemplates that "public records" for purposes of FOIA includes more than just records in the physical custody of a public body, and 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.2

Clearly, the SPCA is acting as an agent of the localities. The Cities of Newport News and Hampton and the County of York are statutorily mandated to have an animal-control officer, and have delegated this function to the SPCA. While the Town of Poquoson is not required to have such an officer, it is permitted to do so and has likewise elected to delegate this role to the SPCA. As demonstrated in the animal-control laws set forth in the Code of Virginia, animal control is a responsibility of government. A locality may choose to delegate these animal-control functions to a third party, but it may not avoid the requirements of FOIA by doing so. If a locality directly operated an animal-control department within its government, records generated by that department would unquestionably be subject to FOIA. The fact that a locality chooses to work with an established organization to perform the governmental functions instead of creating its own department does not change the characterization of the resulting records. Therefore, records relating to the administration of animal control on behalf of the localities, as well as the receipt and use of public funds in carrying out these responsibilities, must be available for public inspection or copying unless a specific statutory exemption applies.

While the records of the SPCA relating to its work for the localities are clearly public records, a more difficult question is whether the SPCA qualifies as a public body for purposes of meetings under FOIA. FOIA defines a public body at § 2.2-3701 to include 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. (Emphasis added). FOIA does not define what it means to be "principally" funded 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.3 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.

You indicate that the SPCA receives 63 percent of its operating budget directly from the four localities. You also indicate that the SPCA employees wear official animal-control uniforms, drive police-style vehicles, and have the authority to issue summons and testify in court on behalf of the localities. These factors demonstrate that the SPCA officers and employees hold themselves out to the public as an arm of the local government. The services provided by the SPCA do not appear to supplement or augment animal control services provided by the localities individually; instead, the SPCA appears to be acting as an arm of each of the localities as the sole animal control entity in the region.

Construing FOIA liberally, as is required by law, and coupling the 63 percent funding received from government entities with the fact that the SPCA acts as the sole animal-control entity of the four localities leads to the conclusion that the SPCA is a public body for purposes of FOIA. As such, meetings of the governing body of the SPCA must be properly noticed and open to the public unless a specific statutory exemption applies. However, the open meeting requirements would only apply to the extent that the meetings relate to the discussion of public business. In this instance, discussion of public business would include discussion of animal-control duties and the use of public funds. It would not include discussions unrelated to the SPCA's work with the localities, such as private fund-raising efforts.4

In conclusion, it appears that the SPCA is acting as an agent of the localities, and thus records generated and received in carrying out this role would be public records under FOIA. Furthermore, it appears that the SPCA falls under the definition of a public body and is also subject to the meeting requirements of FOIA. While the 63 percent funding from government sources is shy of the general two-thirds rule for determining principal funding, the fact that the SPCA is acting as the animal-control arm of the localities leads to the conclusion, in this instance, that the SPCA is a public body to the extent that the governing body of the SPCA is discussing its animal-control function.

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

Sincerely,

Maria J.K. Everett
Executive Director

1Society for the Prevention of Cruelty to Animals.
2See Freedom of Information Advisory Opinion 41 (2001).
3See Freedom of Information Advisory Opinion 36 (2001).
4As noted above, the question of whether a public body is "wholly or principally supported by public funds" is a question of fact to be examined on a case-by-case basis. Therefore, the conclusions drawn in this opinion apply only to the facts presented, and should not be construed to be controlling in other fact scenarios.