FOI Advisory Council Opinion AO-27-04

December 22 , 2004

Paul W. Timmreck
Virginia Commonwealth University

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 correspondence of December 3, 2004.

Dear Mr. Timmreck:

You have asked whether a "task force" organized by the Mayor-elect of the City of Richmond is a "public body" subject to the requirements of the Virginia Freedom of Information Act (FOIA). You also ask whether this task force may conduct private meetings to interview city financial officials. You indicate that the purpose of the task force is to review and analyze the fiscal posture and general financial condition of the City of Richmond. The task force is to advise the Mayor-elect of the results of this review and analysis.

Section 2.2-3701 of the Code of Virginia defines a "public body" to mean 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; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. The definition further includes 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. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members. In most situations a "task force" that was created by a public body "to advise the public body" would itself be considered a public body under this definition. However, in this case the task force was organized by the Mayor-elect, to advise the Mayor-elect.

The Supreme Court of Virginia recently addressed the issue of whether members-elect of a public body could be considered "members" for purposes of determining whether a violation of the meetings rules of FOIA had taken place.1 Referring to the definition of "public body" in FOIA, the Court found that a "member-elect" was not a "member" as contemplated in the plain language of the statute.2 In light of the Court's decision in Beck, it is clear that a Mayor-elect is not a "member" of the City government until he actually takes office. Thus this task force is in essence a group of citizens organized to advise another citizen. Neither the Mayor-elect nor any member of this task force has any governmental authority or responsibility in performing this task. Under the circumstances you have presented, this task force is not a "public body" for FOIA purposes. It is not subject to the open records or meeting requirements of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

1Beck v. Shelton, 267 Va. 482, 593 S.E.2d 195 (2004).
2Id., 267 Va. at 487-88, 593 S.E.2d at 197-198.