FOI Advisory Council Opinion AO-09-02
August 30, 2002
Mr. Christopher Thomas White
Petersburg, 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 faxed and hand-delivered on August 6, 2002.
Dear Mr. White:
You have asked whether you are entitled to inspect the financial records of Ironbridge Acres, Inc. under the Virginia Freedom of Information Act (FOIA).
By way of background, you indicate that Ironbridge Acres is a wholly owned for-profit subsidiary of the Hospital Authority of the City of Petersburg ("the Authority"). Minutes of meetings of the Authority show that the Authority purchased all of the issued and outstanding stock of Ironbridge Acres in 1987. You indicate that over the next decade, the Authority made several loans to Ironbridge Acres, and that in 1996, Ironbridge Acres sold a hospital facility in Colonial Heights to the Authority. When you made a request to the Authority to view the check registers of Ironbridge Acres, the Authority responded that you were not entitled to inspect those records because Ironbridge Acres was not a public body and thus not subject to FOIA.
Subsection A of § 2.2-3704 of the Code of Virginia requires that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection or copying by any citizens of the Commonwealth. The policy provision of FOIA at subsection B of § 2.2-3700 provides that [t]he provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities... Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld...unless specifically made exempt pursuant to this chapter or other specific provision of law.
Section 2.2-3701 provides defines a public body as 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. This same section defines public records 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.
The Authority clearly falls under the definition of a public body under FOIA, as the definition includes authorities. Furthermore, § 15.2-5302, the section which authorizes the creation of a hospital authority by a city, declares that such authorities are political subdivisions of the Commonwealth. The analysis then must turn to whether a wholly-owned subsidiary of a public body also falls under this definition.
As stated above, you indicated that the Authority owned all of the issued stock of Ironbridge Acres. The definition of a public body includes corporations...supported wholly or principally by public funds. Construing this definition liberally, as is required by FOIA, this would pull Ironbridge Acres, an otherwise private corporation, under the definition of a public body. A public body, such as the Authority, cannot dilute or change its identity through the guise of a private corporation. As such, any records of Ironbridge Acres would be subject to public inspection and copying pursuant to FOIA.
The definition of public records includes records prepared or owned by...a public body or its officers. Because the Authority owns Ironbridge Acres, it follows logically that the Authority also owns its records and would be the custodian of those records. Once a FOIA request for Ironbridge Acres records has been made to the Authority, the Authority must respond within five working days pursuant to subsection B of § 2.2-3704. The only way that the Authority may withhold the records of Ironbridge Acres is if they fall under a statutory exemption. Such a denial must be in writing, identify the subject and volume of the records being withheld, and cite the specific Code section that authorizes the withholding.
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
