FOI Advisory Council Opinion AO-24-01

May 2, 2001

Mr. Ronnie Sours
Ms. Donna Triplett
Harrisonburg, VA

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 phone conversations of April 11 and April 25, 2001.

Dear Mr. Sours and Ms. Triplett:

You have asked whether a citizen's advisory group, created to advise the State Transportation Board ("the Board"), is a public body under the Virginia Freedom of Information Act (FOIA).

By way of background, you indicate that the members of the advisory group were appointed by a member of the Board to develop a route for a proposed road in your area. A letter from that Board member stated that the group's recommendation would be given considerable weight by the Board as a whole, and would likely be the selected route. You indicate that the advisory group has been meeting for six months, and has opened its meetings to members of the press, but not the public. You state that you are uncertain as to whether the advisory committee receives any public funds, but you believe that the Board pays for a stenographer to make transcripts of the meetings. You ask whether the advisory board is required to hold open meetings under FOIA.

The Board itself clearly falls under the definition of a public body under FOIA, found at § 2.1-341 of the Code of Virginia, as it is an agency of the Commonwealth. The definition of a public body also includes any committee or subcommittee 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 or subcommittee because it has private sector or citizen members. (Emphasis added) The advisory group that you describe appears to fall under this definition of a public body, and thus would be required to conduct public meetings in accordance with FOIA.

You note that the Board has cited an Attorney General's opinion in support of its conclusion that the advisory group is not a public body under FOIA. The Attorney General opined that a citizen advisory committee appointed by a mayor was not a public body under FOIA.[fn1] The citizen advisory group reported only to the mayor, not to the city council as a whole, and received no public funding. The committee reviewed city charter provisions, and recommended changes to the mayor. In reaching the conclusion that this committee was not a public body, the Attorney General relied on the definition of a public body. At the time of the opinion, FOIA defined a public body as any legislative body, authority, board, bureau, commission, district or agency of the State or of any political subdivision of the State, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; and other organizations, corporations, or agencies of the State, supported wholly or principally by public funds. The definition did not include the language found in the current version of FOIA, which also includes citizen advisory committees under the purview of a public body.

In conclusion, the advisory committee that you have described is a public body subject to the procedural requirements of FOIA. The information that you have provided indicates that the committee's findings will be considered by the Board as a whole in reaching a final decision about the proposed route. Changes in the law, adding advisory groups to the definition of a public body, have outdated the relevant Attorney General's opinion on which the Board relies in reaching a contrary conclusion.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1979-80 Op. Atty. Gen. Va. 316.