FOI Advisory Council Opinion AO-10-08
AO-10-08
October 29, 2008
Jennifer Daniels
Annandale, 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 September 8, 2008.
Dear Ms. Daniels:
You have asked whether certain records of the Annandale Neighborhood Center (the Center), a local community center, are public records subject to disclosure under the Virginia Freedom of Information Act (FOIA). You indicated that Fairfax County (the County) provides funding to Alternative House, a 501(c)(3) nonprofit organization, to run the Center. You point out that the Center is listed on the County's website as a Public-County type of organization.1 You stated that approximately 95% of the Center's funding comes from the County, and that the Center is located on land owned by Fairfax County Public Schools. You further related that approximately 60% of Alternative House's budget comes from federal, state, and local funding, based on publicly disclosed tax filings from 2005. You related that you requested copies of the sign-in sheets for two events held at the Center that were open to the public, an open house for community members and service providers, and an "Annandale Friends Coalition" meeting of local service providers. You indicated that you were initially told that these were not public documents. After you responded that they were indeed public records, the matter was referred to the County grant administrator. Your request was again denied; you were informed that the sign-in sheets had the names of all persons entering the facility, not just those attending the events in question, and that due to the type of services provided, release of the facility sign-in-sheet would violate individual privacy. You further indicated that your initial request was directed to the Center, but Alternative House staff referred you to the County. It appears that the County Attorney's office then informed you that Alternative House, as a contractor with the County, would not necessarily be considered a public body subject to FOIA. You then ask whether the records of a community center funded by the County that serves a public purpose should be considered public records subject to FOIA.
First, it appears that there may be some confusion regarding Alternative House, the Center, their relationship with each other, and their relationship with the County. The County website that lists the Center as a Public-County organization2 also lists Alternative House as a Private-Nonprofit organization.3 The website also lists different administrators, different addresses, and different contact information for the Center and Alternative House. Alternative House is described as operating a crisis shelter and hotline for teens and providing programs for teens at various Family Resource Centers in Fairfax.4 The equivalent description of the Center states that Fairfax County Government and Fairfax County Public Schools have partnered to open a Neighborhood Center in Annandale....the Center is operated by Alternative House.5 Based upon the information you provided and the information on the County website, it therefore appears that Alternative House is a private nonprofit organization that provides services for at-risk teens to the County on a contractual basis, among other activities. Based upon the same information, the Center is a community center facility created by the County and the Fairfax County Public Schools (the County Schools), which is run by Alternative House by contract with the County. The terms of the contract were not presented.
FOIA defines a public body to include not only traditional government entities such as state agencies, local governments, and school boards, among others, but also other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. This office has previously opined that each such entity must be examined on a case-by-case basis, but as a general rule of thumb, an entity that receives two-thirds or more of its funding from public sources would be considered supported...principally by public funds.6 Alternative House is listed as a Private-Nonprofit organization, and you indicated it receives approximately 60% of its funding from local, state, and federal sources. Based on the characterization of Alternative House as a contractor by the County Attorney's office, it appears that at least some of that money is received pursuant to contract, rather than as a government appropriation or through government largesse. As previously opined by this office, money received from competitive contracts or grants is generally not to be considered public funds when determining whether an entity is a public body subject to FOIA.7 If such monies were considered public funds, it would have a chilling effect on the willingness of private companies to contract with government, as it would require them to open their records to public scrutiny solely because they entered into a contract with government. As expressed in § 2.2-3700, FOIA was enacted 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. Opening private company records to public scrutiny in this manner would impair government's ability to contract without furthering those stated goals of FOIA. When a public body contracts with a private entity, contract records can be obtained from the public body. In that fashion, the public can be apprised of what government is doing and how the taxpayers' money is being spent, without needlessly opening the records of private entities to public scrutiny. Additionally, in the case of tax-exempt entities, it appears that federal law requires public disclosure of certain financial information.8 In this instance, it appears that Alternative House is a private nonprofit corporation that contracts with government; approximately 60% of its budget comes from government sources, but it is unclear how much of that is under the terms of the contract with the County. Stated differently, something less than two-thirds of Alternative House's budget comes from public sources, information on its finances is available through its publicly disclosed IRS filings, and information on its contractual agreement(s) with the County would be available through the County. Given this factual background, it appears that Alternative House is not supported wholly or principally by public funds, and is not a public body subject to FOIA.
Turning next to the definition of public record in § 2.2-3701, it 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. Alternative House itself may not be a public body, but if it is acting as an agent of the County in conducting the Center's programs, then records it prepares, owns, or possesses concerning that public business also would be public records.9 Similarly, any records held by the County concerning the transaction of public business - including the business of the Center - would also be public records subject to FOIA. Therefore, it appears that the sign-in sheets you requested concerning the events held by the Center would be public records concerning the transaction of the Center's public business. In other words, the sign-in sheets are public records because they are prepared, possessed, and owned by a public body (the County) or its agent (Alternative House) in the transaction of public business (operating programs at the Center). Therefore under FOIA, those records are subject to disclosure upon request, unless an exemption applies.
You stated that you were informed that the sign-in sheets had the names of all persons entering the facility, not just those attending the events in which you were interested, and that due to the type of services provided, release of the facility sign-in-sheet would violate individual privacy. While this statement may be true, standing alone, it does not comply with the procedural requirements of FOIA. Subdivisions B 1 and B 2 of § 2.2-3704 address the procedural requirements when a request is denied in whole or in part, respectively. In either case, the denial must be in writing and it must identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. If the request is denied entirely, the denial must also identify the volume of the withheld records. It is possible that there are exemptions that may apply to portions of the sign-in sheet, however, it does not appear that any exemptions were cited or that the subject matter or volume of the withheld records was identified. As such, the response appears, at best, to be incomplete.
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. The Center is listed on the Fairfax County website at http://www.fairfaxcounty.gov/rim/organizationdetail.asp?stringName=ANNANDALE+NEIGHBORHOOD+CENTER&Orgrsn=2047 (last visited October 23, 2008).
2. Id.
3. Alterrnative House is listed on the Fairfax County website at http://www.fairfaxcounty.gov/rim/organizationdetail.asp?stringName=ALTERNATIVE+HOUSE&Orgrsn=215 (last visited October 23, 2008).
4. Supra, n.1.
5. Supra, n.3.
6. See, e.g., Freedom of Information Advisory Opinions 07 (2007), 09 (2005) and 36 (2001).
7. See Freedom of Information Advisory Opinions 07 (2007), 07 (2006), 28 (2004), and 6 (2004).
8. While federal tax matters are outside the purview of this office, the Internal Revenue Service (IRS) provides an overview of what tax information an exempt entity must disclose publicly on the IRS website at http://www.irs.gov/charities/article/0,,id=135008,00.html (last visited October 22, 2008).
9. See Freedom of Information Advisory Opinion 19 (2003)(addressing the determination of whether an entity is acting as the agent of a public body).
October 29, 2008
Jennifer Daniels
Annandale, 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 September 8, 2008.
Dear Ms. Daniels:
You have asked whether certain records of the Annandale Neighborhood Center (the Center), a local community center, are public records subject to disclosure under the Virginia Freedom of Information Act (FOIA). You indicated that Fairfax County (the County) provides funding to Alternative House, a 501(c)(3) nonprofit organization, to run the Center. You point out that the Center is listed on the County's website as a Public-County type of organization.1 You stated that approximately 95% of the Center's funding comes from the County, and that the Center is located on land owned by Fairfax County Public Schools. You further related that approximately 60% of Alternative House's budget comes from federal, state, and local funding, based on publicly disclosed tax filings from 2005. You related that you requested copies of the sign-in sheets for two events held at the Center that were open to the public, an open house for community members and service providers, and an "Annandale Friends Coalition" meeting of local service providers. You indicated that you were initially told that these were not public documents. After you responded that they were indeed public records, the matter was referred to the County grant administrator. Your request was again denied; you were informed that the sign-in sheets had the names of all persons entering the facility, not just those attending the events in question, and that due to the type of services provided, release of the facility sign-in-sheet would violate individual privacy. You further indicated that your initial request was directed to the Center, but Alternative House staff referred you to the County. It appears that the County Attorney's office then informed you that Alternative House, as a contractor with the County, would not necessarily be considered a public body subject to FOIA. You then ask whether the records of a community center funded by the County that serves a public purpose should be considered public records subject to FOIA.
First, it appears that there may be some confusion regarding Alternative House, the Center, their relationship with each other, and their relationship with the County. The County website that lists the Center as a Public-County organization2 also lists Alternative House as a Private-Nonprofit organization.3 The website also lists different administrators, different addresses, and different contact information for the Center and Alternative House. Alternative House is described as operating a crisis shelter and hotline for teens and providing programs for teens at various Family Resource Centers in Fairfax.4 The equivalent description of the Center states that Fairfax County Government and Fairfax County Public Schools have partnered to open a Neighborhood Center in Annandale....the Center is operated by Alternative House.5 Based upon the information you provided and the information on the County website, it therefore appears that Alternative House is a private nonprofit organization that provides services for at-risk teens to the County on a contractual basis, among other activities. Based upon the same information, the Center is a community center facility created by the County and the Fairfax County Public Schools (the County Schools), which is run by Alternative House by contract with the County. The terms of the contract were not presented.
FOIA defines a public body to include not only traditional government entities such as state agencies, local governments, and school boards, among others, but also other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. This office has previously opined that each such entity must be examined on a case-by-case basis, but as a general rule of thumb, an entity that receives two-thirds or more of its funding from public sources would be considered supported...principally by public funds.6 Alternative House is listed as a Private-Nonprofit organization, and you indicated it receives approximately 60% of its funding from local, state, and federal sources. Based on the characterization of Alternative House as a contractor by the County Attorney's office, it appears that at least some of that money is received pursuant to contract, rather than as a government appropriation or through government largesse. As previously opined by this office, money received from competitive contracts or grants is generally not to be considered public funds when determining whether an entity is a public body subject to FOIA.7 If such monies were considered public funds, it would have a chilling effect on the willingness of private companies to contract with government, as it would require them to open their records to public scrutiny solely because they entered into a contract with government. As expressed in § 2.2-3700, FOIA was enacted 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. Opening private company records to public scrutiny in this manner would impair government's ability to contract without furthering those stated goals of FOIA. When a public body contracts with a private entity, contract records can be obtained from the public body. In that fashion, the public can be apprised of what government is doing and how the taxpayers' money is being spent, without needlessly opening the records of private entities to public scrutiny. Additionally, in the case of tax-exempt entities, it appears that federal law requires public disclosure of certain financial information.8 In this instance, it appears that Alternative House is a private nonprofit corporation that contracts with government; approximately 60% of its budget comes from government sources, but it is unclear how much of that is under the terms of the contract with the County. Stated differently, something less than two-thirds of Alternative House's budget comes from public sources, information on its finances is available through its publicly disclosed IRS filings, and information on its contractual agreement(s) with the County would be available through the County. Given this factual background, it appears that Alternative House is not supported wholly or principally by public funds, and is not a public body subject to FOIA.
Turning next to the definition of public record in § 2.2-3701, it 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. Alternative House itself may not be a public body, but if it is acting as an agent of the County in conducting the Center's programs, then records it prepares, owns, or possesses concerning that public business also would be public records.9 Similarly, any records held by the County concerning the transaction of public business - including the business of the Center - would also be public records subject to FOIA. Therefore, it appears that the sign-in sheets you requested concerning the events held by the Center would be public records concerning the transaction of the Center's public business. In other words, the sign-in sheets are public records because they are prepared, possessed, and owned by a public body (the County) or its agent (Alternative House) in the transaction of public business (operating programs at the Center). Therefore under FOIA, those records are subject to disclosure upon request, unless an exemption applies.
You stated that you were informed that the sign-in sheets had the names of all persons entering the facility, not just those attending the events in which you were interested, and that due to the type of services provided, release of the facility sign-in-sheet would violate individual privacy. While this statement may be true, standing alone, it does not comply with the procedural requirements of FOIA. Subdivisions B 1 and B 2 of § 2.2-3704 address the procedural requirements when a request is denied in whole or in part, respectively. In either case, the denial must be in writing and it must identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. If the request is denied entirely, the denial must also identify the volume of the withheld records. It is possible that there are exemptions that may apply to portions of the sign-in sheet, however, it does not appear that any exemptions were cited or that the subject matter or volume of the withheld records was identified. As such, the response appears, at best, to be incomplete.
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. The Center is listed on the Fairfax County website at http://www.fairfaxcounty.gov/rim/organizationdetail.asp?stringName=ANNANDALE+NEIGHBORHOOD+CENTER&Orgrsn=2047 (last visited October 23, 2008).
2. Id.
3. Alterrnative House is listed on the Fairfax County website at http://www.fairfaxcounty.gov/rim/organizationdetail.asp?stringName=ALTERNATIVE+HOUSE&Orgrsn=215 (last visited October 23, 2008).
4. Supra, n.1.
5. Supra, n.3.
6. See, e.g., Freedom of Information Advisory Opinions 07 (2007), 09 (2005) and 36 (2001).
7. See Freedom of Information Advisory Opinions 07 (2007), 07 (2006), 28 (2004), and 6 (2004).
8. While federal tax matters are outside the purview of this office, the Internal Revenue Service (IRS) provides an overview of what tax information an exempt entity must disclose publicly on the IRS website at http://www.irs.gov/charities/article/0,,id=135008,00.html (last visited October 22, 2008).
9. See Freedom of Information Advisory Opinion 19 (2003)(addressing the determination of whether an entity is acting as the agent of a public body).
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