FOI Advisory Council Opinion AO-41-01

September 4, 2001

Mr. George Baker
Chairperson, Waynesboro Tourism Steering Committee
Waynesboro, Virginia

Ms. Iris Karl
Member, Waynesboro Tourism Steering Committee
Waynesboro, 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 a phone conversation of June 19, 2001.

Dear Mr. Baker and Ms. Karl:

You have asked a question concerning the application of the Virginia Freedom of Information Act to a tourism program run by the Augusta County Chamber of Commerce ("the Chamber"). You indicate that the Chamber manages the tourism program for the City of Waynesboro, and that the program is funded exclusively with public money. In addition, you state that the Chamber runs the tourism information center, a duty delegated to it by the city council. When records relating to these two activities were requested from the city council, you indicate that the council responded that such records were in the possession of the Chamber, and thus the records were not provided.

Subsection A of § 2.1-342 of the Code of Virginia requires that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth.1 FOIA defines a public record at § 2.1-341 as 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.2 (Emphasis added).

In the facts that you have presented, the Chamber does not appear to be a public body under FOIA. FOIA defines a public body at § 2.1-341 to include organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. It shall include any committee, subcommittee of the public body created to perform delegated functions of the public body or to advise the public body.3 It does not appear that the Chamber in its entirety is supported wholly or principally by public funds, nor does it appear that the city council created the Chamber solely to perform its delegated functions or to advise the public body. However, the fact that the Chamber is not a public body does not end the discussion of whether certain records that it maintains may be available to the public.

The Virginia Freedom of Information Advisory Council ("the Council") has previously addressed a similar question in finding that records collected by a private third party for a public body were subject to FOIA.4 In reaching this conclusion, the Council relied on the fact that the definition of a public record indicates that physical possession of a document by a public body is not the only criterion for determining whether it is accessible by the public. The definition indicates that a record in the possession of an agent of the public body, relating to the transaction of public business, would be subject to FOIA. In the instant case, it appears that the Chamber is performing a task delegated to it by the city council. Ordinarily, a local governing body would be involved in running local tourism activities. Here, however, the city council has delegated this task to the Chamber, and has provided funding to carry out this task. Thus, in so far as the Chamber has records relating to the tourism programs of the City, it is acting as an agent for the city council and the records are available to the public under FOIA.

In the facts that you present, you indicate that you requested these records from the city council. However, the facts indicate that the records were actually in the possession of the Chamber. FOIA states at subsection A of § 2.1-342 that all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.5 (Emphasis added). In the instant case, the Chamber would be the custodian of the records since they possess them in their capacity as an agent for the city council in implementing the tourism program. The instant case is distinguishable from the Council's advisory opinion mentioned above.6 In that advisory opinion, the public body had a statutory duty to collect certain information, and it contracted with a private third party to collect that data. There, the public body remained the custodian of those records, even though it did not have physical custody, because of the statutory duty to maintain the information in those records. Here, there is no statutory duty for the city council to maintain a tourism program, but it has chosen to fund such a program and delegate its administration to the Chamber. There is no statutory duty for the city council to maintain records relating to tourism. In this instance, the Chamber is acting as an agent for the city council. Therefore, while not all records of the Chamber are public records subject to FOIA, those relating to the tourism program that is funded by the city council are subject to FOIA and available to the public. The Chamber, and not the city council, is the appropriate entity to ask for these records.

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

Sincerely,

Maria J.K. Everett
Executive Director

1. Va. Code Ann. § 2.2-3704(A) (Michie 2001) (effective Oct. 1, 2001).

2. Va. Code Ann. § 2.2-3701 (Michie 2001) (effective Oct. 1, 2001).

3. Va. Code Ann. § 2.2-3701 (Michie 2001) (effective Oct. 1, 2001)

4. Virginia Freedom of Information Advisory Opinion 37 (2001).

5. Va. Code Ann. § 2.2-3704(A) (Michie 2001) (effective October 1, 2001).

6. Virginia Freedom of Information Advisory Opinion 37 (2001).